The infantry Marine had been fired from his job, and later charged with six violations of the Uniform Code of Military Justice, for a series of viral social media posts that criticized senior leaders over their handling of the withdrawal of troops from Afghanistan.
“I feel good,” Scheller said as he walked in to learn his sentence. He came back outside to add, “we’ll see what they do.”
Less than an hour later, he walked out without a word after Col. Glen Hines, the Marine Corps judge who decided his sentence, rejected the prosecution’s requested punishment and sharply criticized the Corps’ handling of the case.
Hines said Scheller’s videos in their full context showed a man who appeared “to be in pain,” “confused” and “significantly frustrated,” rather than a rogue and potentially-violent Marine, that his lawyers argued was depicted in the charge sheets.
The judge described alleged leaks to the press and the command’s pretrial confinement order as raising the “specter of unlawful command influence.” It was not officially argued or determined in court, however, whether senior Marine Corps leaders were responsible for the media obtaining these documents.
The previous day, Scheller had pleaded guilty to all charges against him as part of a plea agreement with the Corps, concluding a saga that began when he took to social media Aug. 26 to demand accountability from senior leaders for their perceived failures in Afghanistan.
He continued to make social media posts and videos against the wishes — and later orders — of his chain of command, ultimately finding himself locked in the brig.
Scheller was convicted of violating Article 88 (contempt toward officials), Article 89 (disrespect toward superior commissioned officers), Article 90 (willfully disobeying a superior commissioned officer), Article 92 (dereliction in the performance of duties), Article 92 (failure to obey an order or regulation) and 27 specifications of Article 133 (conduct unbecoming an officer and a gentleman).
Hines directed a forfeiture of $5,000 pay for one month, noting the mitigating circumstances. He would have taken two months of pay, but the judge awarded Scheller credit for his nine days in the brig.
The forfeiture of the pay was the only aspect the judge had power over, due to the pretrial agreement.
Prosecutors had requested that Scheller forfeit $5,000 of pay a month for six months, in addition to a letter of reprimand.
Scheller will also resign his commission under the agreement and receive an honorable discharge or general under honorable conditions as part of the agreement, so long as Navy Secretary Carlos del Toro signs off on the character of the discharge, prosecutors said.
Tim Parlatore, Scheller’s attorney, said that the judge’s decision sends a message to senior leaders.
“When senior leaders [or] certain people decide to take certain actions like leaking medical records, like putting somebody in pretrial confinement [when there is] no risk of flight, there should be consequences,” he said.
The Marine Corps confirmed the letter of reprimand and forfeiture of pay. Training and Education Command Spokesman Capt. Sam Stephenson declined to comment on the outcome of the case.
The money is unlikely to be an issue for Scheller despite him losing his retirement benefits through the resignation.
He has raised more than $2.5 million through controversial former Navy SEAL Eddie Gallagher’s Pipe Hitter Foundation. That money, according to the foundation’s website, is to be used not only for his legal defense, but also emergency relief funds, relocation expenses and transition out of the military, possible loss of military benefits and retirement, and family support for his wife and three children.
The judge, who said he had not seen Scheller’s viral videos before the trial, did not completely absolve the Marine of culpability for his actions, though.
Hines singled out Scheller’s violation of Article 88 for contempt of Defense Secretary Lloyd Austin in his Aug. 26 video.
Article 88 — which criminalizes “contemptuous words” against certain civilian leaders — is extremely “serious” and “corrosive,” Hines said, and can “degrade public trust” in the military and its civilian authorities.
Scheller’s historic conviction appears to be only the second known court-martial for Article 88 since the Uniform Code of Military Justice was adopted in 1950, based on a review of legal literature by Marine Corps Times. Most officers who toed the line of Article 88 receive corrective action other than punitive.
During the Vietnam War, an Army lieutenant was convicted of violating Article 88 after carrying a sign calling then-President Lyndon B. Johnson a fascist.
The Marine also deserves blame for the saga playing out in the public sphere, resulting in a media circus that doesn’t occur for “99 percent” of other courts-martial, the judge said.
But the Corps’ proposed punishment for Scheller’s transgressions, for which everyone in the courtroom agreed he should be held accountable, paled in comparison to the mitigating factors, Hines explained.
In a trial where post-sentencing time in the brig was not even an option, the command’s decision to lock Scheller up while awaiting trial was “a very rare thing,” Hines said.
He also revealed that the Marine signed his plea agreement while in the brig.
Hines blasted apparent leaks of documents that included Scheller’s medical records, as attorney Parlatore claimed at trial, as “very disturbing,” “unfair” and “illegal.”
Scheller didn’t comment as he left the courtroom, but Parlatore was pleased, as were his co-counsel, Brian Ferguson and Jeremiah Sullivan.
“I think that the judge’s decision was very fair — he definitely considered all of the facts,” Parlatore told gathered reporters after Hines pronounced the sentence. “I think that this is a good adjustment [to the prosecution’s recommended sentence], and so we’re very pleased with the result here.”
Davis Winkie is a senior reporter covering the Army, specializing in accountability reporting, personnel issues and military justice. He joined Military Times in 2020. Davis studied history at Vanderbilt University and UNC-Chapel Hill, writing a master's thesis about how the Cold War-era Defense Department influenced Hollywood's WWII movies.