Bilecki Answers Guard NCO’s Allegations Individually; NJP Punishment Suspended

Bilecki Answers Guard NCO’s Allegations Individually; NJP Punishment Suspended

October 2023

Florida Army National Guard

Army Sergeant First Class – E-7

Allegations: Racial Slur and Threat Allegations; Alcohol Abuse; UCMJ Article 128 Assault; Sexual Harassment of a Subordinate

Facts

A Florida Army National Guard Sergeant First Class assigned as a senior recruiting NCO was sitting under an AR 15-6 administrative investigation across five categories of alleged misconduct accumulated from several events over two and a half years.

The government's allegations covered a March 2023 mid-year training event, a February 2022 SMAG III Conference in Puerto Rico, an unspecified-date slap of a Second Lieutenant, a March 2021 mid-year training horseplay incident, and an unspecified Recruiting and Retention NCO sexual harassment allegation. The Government alleged that during the March 2023 training, our client had used racial slurs toward a subordinate Staff Sergeant, threatened to slit the same Staff Sergeant's throat, brought a personally owned pistol into a club and concealed it in his sock to attempt re-entry, and engaged in alcohol-fueled disorderly conduct.

Tim challenged the allegation that the Sergeant First Class had slapped a Second Lieutenant by asking why such a serious incident had produced no contemporaneous counseling or incident record. The threat allegation rested on the Staff Sergeant’s account and was directly denied. The defense also pointed out that our client had no knife, while recognizing that communicating a threat does not require possessing the weapon or intending to carry the threat out. The racial slur allegation rested on a single subordinate's account with no corroborating witness. The alleged slap of the Staff Sergeant during March 2021 mid-year training was admitted as horseplay between two NCOs at a training event, not misconduct toward a subordinate. The sexual harassment allegation was directly denied.

On mitigation, our client had completed substance abuse counseling at a civilian Cohen Military Family Clinic, which discharged him in May 2023 with a documented prognosis of "exceptionally high" and an opinion of no impairment of judgment, reliability, or trustworthiness. Senior NCO character support went into the package.

Our client retained Bilecki during the AR 15-6 investigation, before the Investigating Officer's findings memo went up.

The command reached mixed findings at nonjudicial punishment and suspended the punishment.

The Battalion Commander imposed a Field Grade Article 15 in October 2023 at Saint Francis Barracks, St. Augustine. No court martial referral. No GOMOR or further administrative action.

Result: Mixed findings at Field Grade Article 15, with punishment suspended. No court-martial, GOMOR, or further administrative action. The Soldier remained on active duty.

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FAQ

Q: Why engage during an AR 15-6 investigation?
A defense submission can put contrary evidence and mitigation before the investigator and the command while they are still deciding what the record supports. In this case, the defense challenged the accounts of several incidents and submitted the completed counseling and senior NCO support. The command reached mixed findings at Article 15, suspended the punishment and took no further administrative action.

Q: Why did the defense examine the missing contemporaneous record?
The defense asked why the alleged slap had not generated a counseling memorandum or incident report when it supposedly occurred. That was a reason to scrutinize the later account, not proof that an unrecorded incident could not have happened. The investigator and command had to weigh that absence with the other evidence.

Q: What affected the command’s decision in this investigation?
The defense addressed the allegations separately and paired those challenges with mitigation. The package included the lack of contemporaneous documentation for the alleged slap, the disputed threat account, the context of admitted horseplay, completed substance abuse counseling, and senior NCO support. These were reasons to scrutinize the allegations and consider a limited disposition, not rules that required the command to reject a single-witness allegation.