Osan Trial: One Acquittal, Three Convictions and No Punitive Discharge; Airman Later Retained

Osan Trial: One Acquittal, Three Convictions and No Punitive Discharge; Airman Later Retained

September 2024

Osan Air Base, Republic of Korea

Air Force Master Sergeant – E-7

Allegations: UCMJ Article 92 Dereliction of Duty; UCMJ Article 128 Assault (2 specifications); UCMJ Article 134 Drunk and Disorderly

Facts

An Air Force Master Sergeant at Osan Air Base, Korea was facing an OSTC-referred Special Court-Martial on four specifications across UCMJ Articles 92, 128, and 134. Maximum exposure on the charge sheet at SPCM: confinement up to twelve months, forfeitures, reduction to E-1, reprimand, and Bad Conduct Discharge with the federal conviction characterization that follows.

The Government's case was that on a night out in the Songtan Entertainment District in October 2023, our client (heavily intoxicated and being walked from one bar to the next by two junior subordinates) had grabbed the breast of one of those subordinates and made a juvenile comment. The same evening was the predicate for the second Article 128 specification (a separate touching of the same junior Airman) and the Article 134 drunk and disorderly specification. The Article 92 dereliction count was a separate matter, an alleged relationship with a different Senior Airman who had been in our client's chain of command in spring and summer 2023.

Our client retained Bilecki at the AFOSI investigation stage.

The Government had built a propensity record around the Senior Airman from the Article 92 matter. The record included a Snapchat sex video our client had sent her during the relationship and a recording in which she addressed him as "Master Sergeant" during sex. The Government's theory was that this evidence proved the touching of the Article 128 alleged victim was for sexual gratification rather than a drunken accident. With the propensity evidence in, the Government would have had a sexual touching theory at sentencing that drove the Bad Conduct Discharge ask harder.

We filed a Motion in Limine.

The Military Judge excluded the Snapchat video and the "Master Sergeant" recording for purposes of the Article 128 propensity theory. The defense successfully challenged the proposed use of those recordings to prove the separate touching allegations. With the propensity record stripped, the Government's Article 128 theory was confined to the night-of testimony.

Cross-examination of the lead Government corroboration witness, the Staff Sergeant who had been walking our client on the other side from the alleged victim, produced this testimony at trial: "After reviewing the footage, I did not see any grabbing or groping of my chest. I don't know if he grabbed my chest." That walked back one of the Government's M.R.E. 404(b) corroboration items in real time.

The Military Judge returned NOT GUILTY on the Article 134 drunk and disorderly. The Military Judge convicted on the Article 92 dereliction and on both Article 128 specifications and adjudged 50 days confinement, reduction to E-5, and a reprimand. No punitive discharge. No forfeitures. No DoDI 1325.07 sex offender notification. The post-trial administrative separation board retained the Airman.

Result: Article 134 NOT GUILTY. Convicted of Article 92 dereliction and both Article 128 specifications; sentenced to 50 days confinement, reduction to E-5, and a reprimand. No punitive discharge. Retained after an administrative separation board.

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FAQ

Q: Why did Bilecki challenge the recordings from the separate relationship?
The government wanted to use them to explain the alleged touching on the night in question. Bilecki challenged that connection through a motion in limine. Rule 404(b) permits evidence for a proper purpose such as intent when the required analysis supports admission; it does not permit an inference that someone acted badly before and therefore committed the charged act. The judge excluded the recordings for the challenged use.

Q: What did the cross-examination accomplish?
The Staff Sergeant acknowledged that the footage did not show the grabbing or groping of his own chest that he had described. Bilecki put that concession before the judge as part of the challenge to the government's account of the evening.

Q: What was the complete result?
The judge acquitted our client of drunk and disorderly conduct, but convicted him of dereliction and both assaults. The sentence was fifty days of confinement, reduction to E-5 and a reprimand, with no punitive discharge or forfeitures. A later administrative separation board retained him. The convictions remained; avoiding a punitive discharge did not erase them.