Bilecki Uses Prior Board Victory to Negotiate Marine’s Plea Without Sex-Offender Registration

Bilecki Uses Prior Board Victory to Negotiate Marine’s Plea Without Sex-Offender Registration

October 2021

Marine Corps Base Camp Lejeune, North Carolina

Marine Corporal – E-4

Allegations: UCMJ Article 92 Sexual Harassment and Unduly Familiar Relationship (2 specifications); UCMJ Article 120 Sexual Assault and Abusive Sexual Contact (2 specifications)

Facts

This was a Marine the Government was determined to put on the federal sex offender registry, even after three Marine officers had already considered the same Article 120 allegation at an administrative separation board and found there was not even a preponderance of evidence to support it.

A year earlier, our client had won an administrative separation board on an Article 120 sexual assault allegation arising from a winter night with a fellow Marine in the barracks at Camp Foster, Okinawa. Three Marine officers heard the case. The Board found no basis. The Marine was retained on active duty. Preponderance is the administrative board’s proof standard, lower than proof beyond a reasonable doubt at trial. The Government had not met it.

The Government recharged the same Article 120 specifications anyway.

In early 2021, our client transferred to Camp Lejeune. He was at the time being administratively separated under Other Designated Physical and Mental Conditions protocols for an anxiety and panic disorder he had been diagnosed with and was being treated for. A few weeks after his arrival at Lejeune, he attended a going away party with other Marines, became severely intoxicated, and ended up in a fellow PFC's barracks room professing his feelings for her. She declined. He left. Later that night he sent her texts of the same sentiments. She asked him to leave her alone. He did, and went silent.

She reported the next day.

The Government took the Camp Lejeune incident, recharged the Okinawa Article 120 specifications it had already lost on at the administrative separation board, added an Article 92 sexual harassment specification, and referred the whole package as a general court martial.

Bilecki represented the Marine through the Article 32 hearing and the negotiations that followed.

The R.C.M. 405(k) supplemental matters package put the administrative separation board's "no basis" finding directly in front of the Preliminary Hearing Officer. The defense argument was simple. Three Marine officers had already considered the allegation and found there was not even a preponderance of evidence to support it. The PHO got it. The PHO Report concluded that the administrative separation board had already found "there was not even a preponderance of evidence to prove those allegations, which is a much lower standard than would be applicable at a court martial," and that the second Camp Lejeune incident "is rather minor in nature, and it would likely not have been pursued at a court martial if not for the existence of the first incident."

We took that PHO record into negotiations. Tim Bilecki traveled to MCB Camp Lejeune, North Carolina for the Article 32 and the plea.

The Convening Authority converted the case from general court martial to special court martial, military judge alone. Both Article 120 specifications were dismissed. The Article 92 sexual harassment specification was dismissed. The plea was guilty to a single Article 92 specification (unduly familiar relationship under Navy Regulations paragraph 1165) and a single Article 128 specification (assault consummated by a battery, touching without consent on the Camp Foster night).

Sentence cap: 30 days confinement maximum, concurrent across the two guilty specifications. Bad conduct discharge. No forfeitures. No fines. Reduction to E-1 authorized. Both Article 120 specifications dismissed without prejudice. The Article 92 and Article 128 specifications in this agreement did not trigger federal sex-offender registration. No federal sex offender registration triggered.

Result: Both Article 120 specifications dismissed. Guilty pleas to Article 92 and Article 128 offenses. The agreement provided for a bad-conduct discharge and a 30-day confinement cap. No federal sex-offender registration.

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FAQ

Q: Why did the earlier separation-board victory matter at the Article 32 hearing?
The earlier board finding did not itself bar a criminal prosecution. Bilecki used the actual board record to challenge the decision to pursue the allegation again. The preliminary hearing officer addressed the prior no-basis finding and described the later Camp Lejeune incident as relatively minor.

Q: What did the negotiated resolution require?
The Marine pleaded guilty to an Article 92 unduly familiar relationship specification and an Article 128 battery specification. The sexual-assault and abusive-sexual-contact specifications were dismissed. The agreement provided for a bad-conduct discharge and capped confinement at 30 days. The convictions in this agreement did not trigger federal sex-offender registration.