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Marine gets jail time, reduced rank in hazing case

- Associated Press - Tuesday, January 31, 2012

KANEOHE BAY, Hawaii (AP) — A Hawaii-based Marine lance corporal accused of hazing in Afghanistan is going to jail for 30 days and will have his rank reduced to private first class for punching and kicking a fellow Marine who killed himself shortly afterward.

Navy Capt. Carrie Stephens, the judge in Lance Cpl. Jacob Jacoby's special court-martial, handed down the sentence after Cpl. Jacoby, 21, pleaded guilty to assault.

The Marine admitted he punched and kicked Lance Cpl. Harry Lew of Santa Clara, Calif. As part of the plea deal, prosecutors withdrew charges that Cpl. Jacoby humiliated and threatened Lew.

Capt. Stephens said she found no evidence that Cpl. Jacoby's abuse of Lew caused Lew to kill himself, and she didn't take the suicide into account when determining the sentence.

Two other Marines also have been accused of hazing Lew and face courts-martial.

Cpl. Jacoby said he acted out of anger and frustration that his fellow Marine had repeatedly fallen asleep while on watch for Taliban fighters.

He told the court he wanted to talk to Lew to find out why he kept falling asleep and to help him stay awake. But Cpl. Jacoby said he got angry when Lew spoke to him in a disrespectful manner, even though Lew was putting the lives of the Marines at their patrol base in danger by dozing off.

Before sentencing, Cpl. Jacoby said he was sorry and he wanted to take responsibility for his actions.

"I allowed my emotions and frustrations to get the best of me and acted out against a fellow Marine," Cpl. Jacoby said.

He said he will never forget the pain and humiliation of being court-martialed and believes he can use his experience to help other Marines.

Marine Capt. Jesse Schweig said the government was confident Cpl. Jacoby is capable of rehabilitating himself.

But Capt. Schweig asked the judge to sentence Cpl. Jacoby with an eye on deterring similar behavior. He said Cpl. Jacoby should be given a bad-conduct discharge.

"If this is how you're going to approach and motivate your peers, then you do not need to be a part of the service," Capt. Schweig said in closing remarks at the sentencing hearing.

Navy Lt. John Battisi, Cpl. Jacoby's attorney, said Cpl. Jacoby lost his temper and struck Lew, but he argued that Cpl. Jacoby made sure to hit Lew on his body armor, where he was best protected.

He also asked that the judge keep in mind the circumstances the Marines were in and said that the chain of command hadn't addressed Lew's sleeping problem and instead had left the issue in Cpl. Jacoby's hands that night.

"We're asking him to control his emotions and gain emotional maturity in the heat of battle," Lt. Battisi said in his closing remarks.

Lew committed suicide April 3 at a patrol base in Helmand province shortly after the abuse. The 21-year-old was a nephew of U.S. Rep. Judy Chu.

Two other Marines also are accused of hazing Lew before he shot himself with his machine gun in his foxhole. Sgt. Benjamin Johns, the leader of the squad the Marines belonged to, and Lance Cpl. Carlos Orozco III will have separate courts-martial later.

Both Marines watched the court proceedings Monday.

Lew's father, Allen Lew, testified during the sentencing hearing that his son wanted to join the Marines because he felt it was "the best."

He said was shocked to hear about his son's death, and his legs buckled when Marines came to his house at 7:30 a.m. with the news in April.

"My son died — I have only one son," Lew said. He said he doesn't understand how Marines could do the things they did to their own.

Ms. Chu, California Democrat, attended the hearing.

"I want to make sure that there is justice for Harry. And I want to support these brave persons, his parents," she told reporters beforehand.

The attorney representing Sgt. Johns said he was concerned the presence of a politician would taint the process and interfere with justice.

"How do I get a fair jury? What implicit message is she trying to send to those panel members?" said Tim Bilecki, a defense attorney who specializes in military clients.

Ms. Chu said that wouldn't be the case.

"I'm not going to be saying anything in the trial. All I'm doing is being here. I'm here for the family to support them," she said.

The case involves the actions of Marines at an isolated patrol base the U.S. was establishing to disrupt Taliban drug and weapons trafficking in Helmand province.

Squad members and officers had tried different methods to get Lew to stay awake, including referring him up the chain of command for discipline and taking him off patrols so he could get more rest.

But on Lew's last night, when he fell asleep again, those efforts escalated into alleged acts of violence and humiliation, according to the charges. The Marines were accused of punching and kicking him, making him do push-ups and pouring sand in his face.

A central issue in the case has been whether the Marines intended to humiliate and harm Lew or discipline him so he would stop falling asleep while on watch duty.

Before Lew put the muzzle of his machine gun in his mouth and pulled the trigger, he scrawled a note on his arm: "May hate me now, but in the long run this was the right choice I'm sorry my mom deserves the truth.

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