Cannon Airman’s Sexual Assault Charges Dismissed After Article 32; General Discharge

Cannon Airman’s Sexual Assault Charges Dismissed After Article 32; General Discharge

September 2024

Cannon Air Force Base, New Mexico

Air Force Staff Sergeant – E-5

Allegations: UCMJ Article 120 Sexual Assault; UCMJ Article 120 Abusive Sexual Contact; UCMJ Article 134 Extramarital Sexual Conduct

Facts

This was an Air Force Staff Sergeant at Cannon AFB facing preferred charges alleging Article 120 sexual assault, Article 120 abusive sexual contact, and Article 134 extramarital sexual conduct. Maximum exposure on a referred Article 120 sexual assault conviction at GCM: years of confinement, possible Dishonorable Discharge, federal felony record, and sex offender registration upon conviction of a qualifying offense.

The Government's case on the lead specification was that on a December 2020 night in Clovis, NM, our client had penetrated a fellow Airman without consent at his apartment. The alleged victim and our client had met during a two-week deployment turnover in Afghanistan the prior year. The two had been drinking heavily on the night in question. The alleged victim had no specific memory of penetration. She woke up the next morning next to our client and described vaginal soreness and a tampon pushed inside. She filed a restricted report in spring 2022. The two AFOSI Final ROIs were issued in late 2023. Charges were preferred in August 2023.

Our client retained Bilecki at the AFOSI investigation stage.

At the Article 32, the alleged victim declined to testify. The PHO had to evaluate the sexual assault and extramarital specifications on the documentary record: the AFOSI ROIs, the alleged victim's restricted report, the timeline gaps, and the defense submission. The defense walked the PHO through the documentary problems with both specifications.

The Article 32 PHO Report recommended withdrawing and dismissing the Article 120 sexual assault specification and the Article 134 extramarital specification.

The Government then withdrew and dismissed all preferred charges in April 2024. Broader than the PHO recommendation.

The administrative track did not stop with the withdrawal and dismissal. The Squadron Commander issued a Letter of Reprimand; an administrative discharge under DAFI 36-3211 was initiated. Tim Bilecki challenged the reprimand in a memorandum to the squadron commander, using the evidentiary weaknesses raised at the preliminary hearing. The Article 32 recommendation supported that argument; it did not itself decide whether the reprimand was justified under the separate administrative standard. The defense then filed a Conditional Waiver of Discharge Board contingent on at least General (Under Honorable Conditions) characterization. The conditional waiver was accepted. Our client separated General (Under Honorable Conditions).

Result: All preferred charges withdrawn and dismissed after Article 32. Airman separated General (Under Honorable Conditions). No court martial. No SORNA.

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FAQ

Q: What did Bilecki do at the Article 32 hearing?
The complainant declined to testify. Bilecki addressed the evidence that was before the preliminary hearing officer, including the investigative reports, prior account and gaps in the timeline. The officer recommended withdrawing and dismissing the sexual-assault and extramarital specifications. The government subsequently withdrew and dismissed all preferred charges.

Q: Did that recommendation also dispose of the reprimand and separation?
No. Bilecki used the same evidentiary problems to challenge the reprimand, but the command could assess administrative action separately. The defense then obtained acceptance of a conditional board waiver requiring at least a General discharge. Our client separated with that characterization and no court-martial conviction.