Bilecki Uses Relationship and Medical Evidence to Win Marine’s Separation Board

Bilecki Uses Relationship and Medical Evidence to Win Marine’s Separation Board

October 2020

Marine Corps Base Camp Foster, Okinawa, Japan

Marine Corporal – E-4

Allegations: UCMJ Article 120 Sexual Assault

Facts

The Convening General had already decided this Marine was guilty before the board ever sat. The Notification of Separation Proceedings stated that the CG had "determined by preponderance of the evidence that you committed this offense," cited Article 120 sexual assault on a fellow Marine, and concluded that separation with an Other Than Honorable characterization was warranted. NCIS had run the investigation. A Military Protective Order was in place. Three Marine officers were going to decide whether the Corporal kept his uniform.

This was not a stranger encounter. Our client and the alleged victim were two Marines from the same shop who had become close. Movie nights in each other's rooms. Cuddling on the bed. He had taken her to another Marine's house for the holidays. Other Marines saw them as a couple. He had referred to her as his girlfriend.

In January 2020, she came to his room. They drank wine. They were on the bed together. The Government's case was that what followed was a sexual encounter that had not been consensual. The next day she reported to NCIS.

Our client had a documented mental health diagnosis with active treatment. The relationship was holding him together. When he realized something had gone wrong, he panicked. He sent her long, escalating, apologetic texts trying to figure out what had gone wrong. He sent her roommate the same kind of texts. He could not stop. A few days later he hurt himself.

To outsiders, those texts looked like consciousness of guilt. The defense put them in the context of his medical history and his reaction to the relationship falling apart. We argued that the apologies reflected that panic, rather than an admission that he knew the encounter was nonconsensual.

Our client retained Bilecki after the Notification of Separation Proceedings dropped with the CG's preponderance finding already on it.

The defense was an honest and reasonable mistake of fact as to consent. Bilecki asked the board to consider what the Marine understood from the relationship and from what she said and did that night. We also challenged the Government’s use of the later apologetic texts. The medical records and our client’s testimony gave the board a different explanation for those messages: he was panicking over the relationship, rather than admitting that he had knowingly assaulted her.

The alleged victim did not testify at the board.

Our client did. He took the stand and walked the three Marine officers through the relationship in his own voice. The holidays at another Marine's house, the girlfriend label, the movie nights, the night in the room. He testified to exactly what the apologetic texts meant. He told the board he had panicked when he realized something had gone wrong with the relationship, and he explained why a man with his medical record sends those texts. The defense exhibit binder carried the contemporaneous medical records, character evidence from across grades, and the comparison authority for the characterization fight.

Tim Bilecki traveled to MCB Camp Foster, Okinawa for the administrative separation board.

Three Marine officers found no basis. The Marine was retained on active duty.

A later Article 32 in a separate proceeding involving the same Marine put the result back on the record: "three Marine officers have already found that 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."

Result: administrative separation board found no basis. Marine retained on active duty.

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FAQ

Q: How did Bilecki address the apologetic texts?
He put the messages alongside the relationship history, contemporaneous medical records and the Marine’s testimony. The defense argued that the texts reflected panic about losing the relationship and did not establish that he understood the encounter to be nonconsensual. The three officers heard the Marine explain the messages in his own words and found no basis for separation.

Q: Had the General’s earlier statement already decided the board’s result?
No. The notification stated the command’s basis for seeking separation. The enlisted administrative separation board still had to consider whether the evidence established the alleged basis. In this case, a board of three Marine officers found no basis and the Corporal was retained. The officers’ membership did not turn his enlisted separation proceeding into an officer Board of Inquiry.