Bilecki Challenges Incomplete Sexual-Assault Record and Secures General Discharge for Army Specialist

Bilecki Challenges Incomplete Sexual-Assault Record and Secures General Discharge for Army Specialist

October 2021

Eighth Army, Republic of Korea (Camp Humphreys)

Army Specialist – E-4

Allegations: UCMJ Article 120 Sexual Assault

Facts

A junior enlisted Soldier in Korea was investigated for alleged sexual assault of another junior enlisted Soldier after a night of drinking in the Eighth Army area. The case could have gone to a general court martial. It did not.

Bilecki Law Group was retained early, while the case was still in the pre-charging stage. We filed a Notice of Representation, got into the case before charges were preferred, and pushed the matter away from an Article 120 court martial track. The Commanding General did not refer the case to trial. The case stayed administrative.

The facts were strange, messy, and very human.

Our client and the complaining witness were both junior Soldiers. They had grown close during Basic Leadership Course in Korea. They had spent time together before the night in question, including lunches, golf, and other one-on-one time. This was not a stranger assault allegation. This was two Soldiers who knew each other, had been drinking together, and ended up back in the barracks.

On the night in question, she wanted to go out and celebrate. They went to the Ville, had dinner, moved between bars, drank, and eventually ended up at the Osan Club. As the night went on, she became more affectionate with our client. She put her arms around him. She rested her head on his shoulder. That continued in the taxi ride back to the barracks.

When they got back, she told him she was coming back to his room. He went to his room, changed, and got ready for bed. A few minutes later, she showed up at his door wearing shorts and a long sleeve shirt, carrying two bags of popcorn.

She asked him to make the popcorn.

That is where the case got ridiculous, but also important.

He put the first bag in the microwave. While it was popping, they started kissing and moved to his bed. Then the microwave beeped. He got up, changed out the first bag, put in the second bag, and came back. She was still in his bed. They resumed. They had sex. It was brief. He finished before the second bag of popcorn was done, got up, took the popcorn out of the microwave, handed her the bags, and told her he was going to bed.

It was crude. It was awkward. It was not gentlemanly. It was also not a general court martial.

After she left, she texted him: "why did you do that to me, I said no." He immediately called her to ask what she was talking about. She did not answer.

That text became the heart of the allegation.

The defense work focused on what the GOMOR packet did not show. The complaining witness was not participating in the investigation in any meaningful way. Her sworn statement and recorded interview were not included in the GOMOR packet. The packet relied heavily on what other Soldiers said she said, not on a live, testable accusation from her.

We challenged the completeness of that record. One of the Soldiers who received her messages had refused to give investigators the complete conversation, citing privacy. Our rebuttal pointed out that the command was being asked to accept an accusation relayed through others without the full communications needed to assess it.

We walked the chain through the full sequence. The prior relationship. The night out at the Ville and the Osan Club. The drinking. The affectionate conduct at the club and in the taxi. Her decision to return to his room after changing clothes. The two bags of popcorn. The microwave interruption. The sex. The abrupt ending. The immediate text afterward.

We also compared her description of physical resistance with the examination findings. She said she had scratched the side of his head, but the examination recorded no injury and his DNA was not reported in the scrapings from her fingernails. We used that discrepancy to challenge corroboration of her account. It did not, by itself, prove consent.

The Army did not send the case to court martial.

The Eighth Army Commanding General issued a GOMOR. The command initiated AR 635-200 Chapter 14-12c separation for commission of a serious offense and recommended an Other Than Honorable discharge.

We pushed the same documentary record argument into the AdSep negotiation. If the Army's own non-referral decision had been the right call, an OTH on the same conduct was disproportionate. The Army approved a conditional waiver capped at General (Under Honorable Conditions).

Result: No court martial. GOMOR filed. AdSep with General (Under Honorable Conditions), not OTH. No federal sex offender registration.

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FAQ

Q: What was missing from the GOMOR packet?
The complainant’s sworn statement and recorded interview were not included. One Soldier who had received her messages also withheld the complete conversation, citing privacy. Bilecki challenged the command’s reliance on an incomplete account and presented the relationship history, communications and examination findings. The absence of those items from the packet did not prove that no statement existed elsewhere.

Q: What did the defense achieve after the Army sought an OTH discharge?
The criminal case did not proceed to court-martial. After the Army issued a GOMOR and initiated separation, Bilecki continued to challenge the record and negotiated a conditional waiver capped at a General discharge under honorable conditions. The Soldier separated with that characterization and no federal sex-offender registration.

Q: Did the General discharge preserve every veterans’ benefit?
No. Eligibility depends on the benefit and the person’s service. A General discharge generally permits consideration for VA healthcare and disability compensation, but does not itself meet the Honorable-discharge requirement for the Post-9/11 GI Bill. An OTH discharge also does not automatically close every VA benefit pathway; VA may make its own character-of-discharge determination.