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Anti-Obama Marine: Discharge decision based on 'personal opinion' not law

Marine Sgt. Gary Stein, who is facing dismissal for posting critical comments about President Obama on Facebook, accused the review board that recommended he be discharged of basing its decision on "personal opinion" Tuesday. 

"I believe it was more based on personal opinion on the three members than it was based on the legalities on the case. They denied four expert witnesses that were there to talk about the legalities. They didn't even want to hear or take written testimony from them," said Stein on CNN's "Starting Point" Tuesday morning. 

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"They've based this on personal opinion, nothing about the legal aspects."

The three-member review board recommended last week that Stein receive an "other than honorable" discharge, which would include a loss of benefits and reduction in rank, for saying he would not follow orders he believed unlawful and for calling Obama a "domestic enemy" on his "Armed Forces Tea Party" Facebook page. 

Stein also superimposed the president’s face on a "Jackass" movie poster and sold "Nobama" stickers, according to Marine prosecutors

Service members are banned from engaging in political speech or activities while representing the military.

Stein sued in federal court last week in an attempt to stop the military hearing last Thursday, but the judge declined to delay the proceeding. The board’s recommendation is given to the commanding general at the Marine Corps Recruit Depot San Diego, where Stein is based, who will make the final decision. 

When pressed on his conduct by CNN, the Marine said he believed his "words were somewhat tasteless and he could have used better words." However, he said that he had "every right" to give his personal opinion as an individual. 

While he didn't deny posting the comments, Stein argued that they were made on a closed forum and were online for a short period of time, but were widely disseminated by a fellow Marine.

Stein and his attorneys argue that he should not be punished under the military directive for political speech, and his lawsuit says it is vague, overboard and “unconstitutionally restricts core political speech.”

His lawyer, Gary Kreep, who appeared in the interview with Stein, told CNN that "contrary to popular belief, Marines, members of the Army, all the members of the Armed Forces do not give up their First Amendment rights."

Kreep, the executive director of the conservative U.S. Justice Foundation, also said that it is "not just a First Amendment case," and argued Stein can't be punished for his actions, according to Marine Corps regulations.

He said that the review panel based its recommendation on a rule that exists for officers and applied it to non-commissioned officers as well.

"They violated their own rules, they violated their own procedures," Kreep said.

The attorney also said Tuesday that a disclaimer was put on the “Armed Forces Tea Party” Facebook page explaining that the opinions expressed were personal statements and not representative of the Marine Corps. 

A decision on Stein's discharge is expected Friday, according to Kreep.

He told CNN that there is a "definite possibility" his client will lose the hearing, but vowed to continue the case in court.

"The federal court hearing on this matter has expressed a marked unwillingness to protect the rights of Sgt. Stein and has urged us to go up to the Ninth Circuit … if we lose on Friday, on Monday we'll be before the Ninth Circuit," he added. 

For more on Stein's discharge proceedings and his lawsuit on The Hill's DEFCON blog, click here. 

—Jeremy Herb contributed to this story.