Having received an honorable discharge from active duty, former Marine Sgt. Adam Kokesh thought he could once again partake in all the privileges of civilian life, namely free speech. So Mr. Kokesh, who'd served one tour of duty in Fallujah with a civil affairs unit, became active in the antiwar movement.
There was one problem, though: Kokesh wasn't technically out of the military. He was still part of the Individual Ready Reserve (IRR), a gray area of military service where personnel are neither active duty nor entirely civilians. So when Marine Corps officials noticed pictures in The Washington Post of Kokesh protesting while wearing pieces of his uniform – OK for civilians, not for anyone in the military – they took disciplinary action. On Monday, the Corps recommended a downgrade of Kokesh's honorable discharge to a general discharge.
That probably won't affect his veterans' benefits. But two other marines in the IRR face similar charges and risk losing their veterans' benefits, such as healthcare and money for education.
The three marines' situation has raised questions about when military personnel officially become civilians entitled to free speech and all the other rights that Americans outside the service enjoy. Additionally, legal experts have accused Marine Corps officials of overstepping boundaries and have questioned their motives.
Although veterans have donned parts of their uniforms while protesting other wars, it is extremely rare, perhaps unprecedented, to be punished for doing so. A brigadier general is scheduled to decide Kokesh's case Friday.
Everyone in the military spends several years after the completion of active duty in the IRR. "Once you've finished your active-duty time, you fall into the IRR status," explains Marine Gunnery Sgt. Chad Homan, public-affairs chief of the Marine Corps Mobilization Command. "With that comes adherence to certain regulations."
Those in the IRR do not receive a paycheck or benefits, but they also don't report to duty. They're required only to keep the military informed of their whereabouts, and in the event of a major troop shortage or national emergency, the military can order them back.
Just what rules apply to marines in the IRR has proved somewhat of a contentious issue.
Kokesh and another former marine made an effort to demonstrate that they were not representing the Marine Corps when they staged a protest against the Iraq war in Washington this past March. Kokesh removed all name tags and other emblems from his uniform except for the Marine logo embroidered into the camouflage.
At a protest march in Washington in January, former Marine Sgt. Liam Madden, who spent seven months in Iraq, wore his blouse, or camouflage shirt, with jeans and a T-shirt.
Referring to Kokesh's case, disciplining a marine for such behavior has not been seen before, his attorneys charge. "It will be the first time ever anyone has been disciplined for this offense," says Kevin Zeese, one of Kokesh's attorneys and the director of Democracy Rising, an antiwar group based in Washington.
"During the Vietnam War and after, you did have people protesting the war who'd served in the war and who wore articles of military clothing as part of the protest," says Ralph Stein, professor of constitutional law at Pace University School of Law in White Plains, N.Y. "They were not prosecuted, but that was largely a question of discretion.... It's a judgment call."
If the Marine brigadier general decides to downgrade Kokesh's honorable discharge, he plans to challenge it in federal court.
"What I'm fighting for here is the rights of all veterans," says Kokesh, so "that they will be able to have their full rights as citizens until they get called back to active duty."
Military critics have pointed to a double standard for veterans who oppose the war. For example, generals can also be recalled into service after retirement. Last month, former Marine Gen. James Jones Jr. appeared in an advertisement in The Washington Post wearing his full military uniform and announcing his participation in developmental programs for M.I.C. Industries, a defense contractor.
"The military's regulations make it very clear that you're not supposed to wear your uniform for commercial purposes, just as you're not supposed to wear it to express political views," says Arthur Spitzer, legal director of the American Civil Liberties Union of the National Capital Area. "I bet you that no one is thinking about reprimanding General Jones for appearing in full dress uniform in this commercial advertisement."
Even the Veterans of Foreign Wars (VFW), one of the largest veterans organizations in the United States, has backed the marines in question. "This marine went to war, did his duty, came home, and received an honorable discharge. He has a message to say, but now the Marine Corps wants to stifle his ability to say the message," says Joe Davis, spokesman for the VFW, speaking about Kokesh.
"It's a free-speech issue, but it's more than just the right to say what you want," says Madden, who also faces disloyal-statement charges for calling US involvement in Iraq a war crime during a speech he made while in civilian clothing.
Still, the Marine Corps maintains that no one was targeted for political beliefs. "At no time do I believe that an individual was singled out," says Gunnery Sergeant Homan. "It was just an incident that came to our attention, and it was addressed."