Bilecki Challenges Guard First Sergeant’s Investigation; Local GOMOR and Separation Withdrawn

Bilecki Challenges Guard First Sergeant’s Investigation; Local GOMOR and Separation Withdrawn

February 2024

New Mexico Army National Guard

Army First Sergeant – E-8

Allegations: Sexual Harassment; Alleged Sexual Assault; Race / National-Origin Harassment of a Junior Soldier

Facts

A New Mexico Army National Guard First Sergeant with twenty years of service and combat deployments to Kuwait and Iraq was facing a GOMOR for sexual harassment and an alleged sexual assault and a parallel administrative separation board referral with an Other Than Honorable recommendation. The AR 15-6 had substantiated eight of nine specifications. The defense ran a polygraph, filed a comprehensive rebuttal, and held the result to a local-filing GOMOR with no separation board, no NJP, and no court-martial.

The case started during June 2023 Annual Training at White Sands Missile Range. The Government alleged that our client repeatedly used pet names with a junior Specialist, isolated her in supply and motor pool spaces, called her the "forbidden fruit" of the company, told her her body would draw commentary from male Soldiers, and in a culminating incident at the supply room asked her weight, came up behind her, lifted her into the air to "guess her weight," and made contact with her breasts over her clothing. The Investigating Officer substantiated the allegations and recommended at minimum a GOMOR plus consideration of separation. The State JAG referred the matter for an involuntary separation board under NGR 600-200 paragraph 6-35i and AR 135-178 Chapter 11-1c with an Other Than Honorable recommendation.

An Other Than Honorable separation threatened the career and retirement of a senior NCO with twenty years of service.

The polygraph examiner administered a three-relevant-question polygraph in late January 2024. The questions covered sexual contact with the alleged victim, touching of private parts, and our client's account of the lift incident. The examiner reported no significant reactions indicative of deception. We submitted the report with the rest of the defense evidence for the commanders to consider.

That was the foundation. The rebuttal was the rest of the work.

The defense GOMOR rebuttal and Notification-of-Separation rebuttal package put the polygraph in front of the Adjutant General, the Deputy Adjutant General, and the brigade Convening Authority. The package challenged the standard the IO had applied and argued that the alleged hostile-environment conduct required analysis under the applicable sexual-harassment provisions of AR 600-20. A severe-or-pervasive inquiry addresses a hostile-environment theory; it is not a universal test for every allegation of sexual harassment or sexual assault. Tim Bilecki challenged the heavy redactions, the contradictions between the alleged victim’s contemporaneous account and her later statement, and findings that relied on the investigating officer’s personal opinions. He also presented the unit’s cultural and motive context and challenged the decision to pursue involuntary separation before the client had his opportunity to rebut it. A Brigade Command Sergeant Major's contemporaneous-record character letter corroborated that the lift incident had been counseled at the time as "leadership stupidity" and closed administratively at AT, not as a sexual assault.

The Adjutant General directed the GOMOR be filed locally in the Military Personnel Records Jacket, not permanently in the AMHRR. The separation board demand was satisfied without the board convening. The Chapter 11-1c separation track was withdrawn.

Result: GOMOR filed locally only. Separation board withdrawn. No NJP. No court-martial.

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FAQ

Q: What did Bilecki present beyond the polygraph?
Tim challenged the redacted investigative record, compared the complainant’s accounts and addressed findings based on the investigator’s personal opinion. The rebuttal also included the Brigade Command Sergeant Major’s account of how the lift incident had been addressed during annual training. That record supported the request for local filing and withdrawal of separation proceedings.

Q: Did the polygraph establish innocence?
The examiner reported no significant reactions indicative of deception, and the defense offered the report in the administrative proceedings. It was one part of the submission, not a mathematical probability of innocence. The actual result was local filing of the GOMOR and withdrawal of the separation proceeding, without NJP or court-martial.