Lieutenant Colonel Scheller: More Than a Sacrificial Lamb

The first time that many reading this probably heard the name Stuart Scheller was when he posted a video to Facebook on August 26, 2021. In that video, Lt. Colonel Scheller, dressed in Marine Corps camouflage utilities, blasted the current administration’s handling of the Afghanistan withdrawal and called for accountability for the leaders who mandated that the withdrawal occur as it did.

“Bring It DOWN”

In a way, Scheller was calling for much the same thing that the general public was: simple accountability. Scheller was seen by many as the “White Knight” who had the courage to break free from the norm and criticize those who deserve the criticism. After that first post, many people — servicemembers and civilians alike — responded positively to Scheller’s post. The issue, though, is that Stuart Scheller Jr. is an active-duty lieutenant colonel in the United States Marine Corps. Given the Corps’s focus on bearing and accountability, one can assume the Marine Corps brass didn’t take too highly to this very vocal criticism, especially from a fairly high-ranking Marine officer.

Following that initial video, Lt. Colonel Scheller went on to make follow-up videos over the next month, in which he further stated his opinion on the leadership of the country and the military, even vowing to “bring the whole f****ng system down.” He later clarified that statement a bit by saying he planned to bring it down in a “Constitutional manner,” but his original comment was already out there and it was garnering significant attention.

During that same timeframe, Lt. Colonel Scheller also publicly resigned his commission (at least on his end; it still must be accepted by the Marine Corps) and stated he was okay with not receiving retirement benefits. He didn’t say these things privately to the appropriate personnel within his chain of command, however; he made videos of these proclamations and posted them to various social media outlets.

The Marine Corps Responds

Many active and former military members alike knew that the Marine Corps likely wouldn’t sit on Scheller’s commentary and seemingly veiled threats without responding vigorously. On September 27, the Marine Corps provided that response by having Scheller taken into custody and held in pretrial confinement in Camp Lejeune’s brig.

Scheller stands accused (but remains uncharged) of the following offenses under the Uniform Code of Military Justice (UCMJ):

• Article 88: Contempt Toward Officials
• Article 90: Willfully Disobeying a Superior Commissioned Officer
• Article 92: Failure to Obey an Order
• Article 133: Conduct Unbecoming an Officer and a Gentleman

According to the 2019 version of the United States Military Manual of Courts-Marshal, Scheller faces the imposition of the following sentences, if charged with the abovementioned offenses:

• Article 88: Contempt Toward Officials
  • One-year confinement and dismissal (akin to an enlisted Marine’s dishonorable discharge)
• Article 90: Willfully Disobeying a Superior Commissioned Officer
  • Five-years to life confinement
• Article 92: Failure to Obey an Order
  • Six months to two years confinement
• Article 133: Conduct Unbecoming an Officer and a Gentleman
  • One year (or prescribed) confinement and dismissal

The Marine Corps’s Options for Restriction

Pretrial confinement wasn’t the only option the Marine Corps had, however. When a military member is accused of an offense under the UCMJ, the government has four basic options with how to restrict him/her while awaiting the filing of official charges or trial. Those are:

• Conditions on Liberty
• Restriction in Lieu of Arrest
• Arrest
• Confinement

The United States Military Manual of Courts-Marshal sets the standard for the conditions that need to be present for pretrial confinement; the most severe restriction. It states:

“The commander shall direct the confinee’s release from pretrial confinement unless the commander believes upon probable cause, that is, upon reasonable grounds, that:

1. An offense triable by a court-martial has been committed
2. The confines committed it
3. Confinement is necessary because it is foreseeable that:
   1. The confines will not appear at trial, pretrial hearing, or preliminary hearing, or
   2. The confinee will engage in serious criminal misconduct; and
   3. Less severe forms of restraint are inadequate.”

The manual further states, “The restraint should not be more rigorous than the circumstances require to ensure the presence of the person restrained or to prevent foreseeable serious criminal misconduct.” It then goes on to define “serious criminal misconduct” as:

“Intimidation of witnesses or other obstruction of justice, serious injury of others, or other offenses which pose a serious threat to the safety of the community or to the effectiveness, morale, discipline, readiness, or safety of the command, or to the national security of the United States.”

Scheller’s Confinement May Be Excessive

As you see above, pretrial confinement is only utilized in serious incidents, or when other forms of restriction have proved ineffectual; it isn’t typically used when one allegedly ignored a gag order or for conduct unbecoming of an officer. Due to the fact that no other less severe forms of restraint were attempted in order to restrict Lt. Colonel Scheller, it doesn’t seem to me that pretrial confinement was prudent or appropriate, at that point in this case. I can easily imagine a world in which Scheller has conditions placed on his liberty. I can even imagine Scheller being placed on barracks restriction and being barred from access to electronic devices. I can’t see a valid argument for his pretrial confinement, however.

The one positive for Scheller is that during his time in pretrial confinement he is still entitled to his pay. Should he be found guilty and sentenced to time in the brig, he’ll likely be given credit for his time served and could even get two for one or three for one time for the time he served in pretrial confinement. Essentially, the judge presiding over the case can determine that the pretrial confinement was misused or was inappropriate for the circumstances and can give the defendant double or triple credit (or even more) for the time he/she already served.

Confinement According to a Military Attorney

To better understand the topic of pretrial confinement, SOFREP reached out to an attorney at Military Justice Attorneys (www.mja.law) for comment. The attorney, a former Marine Judge Advocate, advised me the following about the initial confinement process:

“Once a service member has been ordered into pretrial confinement, a neutral and detached officer must review the imposition of confinement within 48 hours to determine whether there is probable cause that the service member committed an offense triable by court-martial and that confinement is required by the circumstances.

Then, within the first 72 hours of confinement, the service member’s commander must either direct their release from confinement or prepare a written memorandum explaining why pretrial confinement is warranted. The memo must explain why the commander believes:

(i)    that the service member committed an offense triable by court-martial;

(ii)   that confinement is necessary because it is foreseeable that the service member will not appear at future court proceedings or will engage in serious criminal misconduct; and

(iii) that less severe forms of restraint are inadequate.

Finally, within 7 days of the imposition of pretrial confinement, a neutral and detached officer must conduct a hearing to review the probable cause determination and necessity for pretrial confinement. At the hearing, the service member may be represented by military or civilian counsel and can submit evidence on their behalf. The 7-day reviewing officer’s conclusions, including their factual findings, must be set forth in a written memorandum.

If the 7-day reviewing officer approves continued confinement, the service member can request reconsideration of the decision if they have “significant information not previously considered.” Otherwise, the service member must wait until a judge is assigned his case, at which point, he can ask the judge to review the propriety of pretrial confinement. “

Based on the opinion given above, by the time of this article’s publication, Scheller should have already had multiple military officials review his confinement. This procedure is typically a non-partisan, unbiased review; and it very well may be for Scheller, as well.

If Scheller Is Charged, It Should Be for his ACTIONS, Not for REVENGE

What generally concerns me with Scheller’s case, though, is what concerned me with former police officer Derek Chauvin’s. I’m afraid Scheller is going to be made an example of to prevent future actions of a similar nature. Scheller openly criticized military leaders and both current and former presidential administrations, among others. I have to imagine that behind the scenes, military and defense department personnel are considering all of their options on how to deal with Scheller in an attempt to suppress this type of behavior in the future.

Military units, whether active duty Marines or Air National Guard, need both leaders and enlisted personnel to exhibit good order and discipline. If Scheller did indeed violate a gag order, then in a way he asked for the treatment he is receiving. If one ties the military’s hands on an issue, then one cannot be shocked when the military responds in its own way, especially when that branch of the military is the Marine Corps.

I also believe, though, that the Marine Corps is very intentionally making a public statement with Scheller’s arrest. I believe the Marine Corps is letting both enlisted and officers know that behavior akin to Scheller’s will not be tolerated. I also think they might just be doing it in a slightly inappropriate and overbearing way.

Like Chauvin, Scheller deserves a fair trial. Scheller shouldn’t be the face of all military members who speak their minds out of turn. He shouldn’t be the one held responsible for every Marine who has ever disobeyed an order and not been punished, nor should he be the standard-bearer for every Marine who has acted in a way unbecoming and had his/her punishments be ignored. At most, Scheller should face charges for any actions or offenses he committed. He shouldn’t be used as a scapegoat.

As an example, Derek Chauvin became the poster child for all things police misconduct. According to naysayers (and the prosecution it seems), Chauvin typified normal police/black suspect interactions. According to some, Chauvin’s knee on Floyd’s neck was symbolic of police officers and the black community. The problem is, though, that Chauvin didn’t ask for nor deserve any of that extra weight on his actions. Chauvin was responsible only for what Chauvin did on that Minneapolis street corner. I’m nearly certain that Chauvin didn’t even for a second think “George Floyd is black so he can get a little extra punishment today.” That just wouldn’t be how a typical officer responds.

In spite of that, Chauvin was offered to the Black Lives Matter gods as a sacrifice for other injustices that have occurred between black society and police officers. That simply isn’t fair. If you think it is, then put your child in Chauvin’s position and see if you’d still want (un-blind) justice. Justice should be doled out for the specific case and information at hand, not to right a past wrong or to stop a future incident. That isn’t the point of justice; liberty and justice for all is. Scheller deserves the same fair consideration. In the Chauvin case, the political circus aspects of the trial overran the actual purpose of the “Justice” system, which is to seek justice for the victim of a crime while delivering a verdict that is also just to the perpetrator. Some of the things that went on during that trial were so egregious that Chauvin’s appeal for a new trial will likely be granted and he may yet be acquitted. This is always the issue with politicized trials. The politics of the thing actually undermine the prosecution in obtaining a guilty verdict.

We’ll see what transpires with the Lt. Colonel Scheller case as more information is released. It’ll be interesting to see whether the Marine Corps chooses to charge, court-martial, dismiss him from the service, or allow him to finish out his career. One thing that is for certain, though, is that SOFREP will be monitoring the case until its conclusion; and we’ll be providing information and updates as they present themselves. Our interest is in assuring that the politics surrounding the Scheller case don’t result in unfair treatment under the UCMJ.