Bilecki Negotiates Dismissal of Bar-Fight Charge and No Punitive Discharge for Sergeant First Class

Bilecki Negotiates Dismissal of Bar-Fight Charge and No Punitive Discharge for Sergeant First Class

August 2022

Camp Humphreys, Republic of Korea

Army Sergeant First Class – E-7

Allegations: UCMJ Article 90 Willful Disobedience; UCMJ Article 115 Communicating a Threat; UCMJ Article 117a Wrongful Broadcast of Intimate Visual Images (2 specifications); UCMJ Article 128 Aggravated Assault (2 specifications); UCMJ Article 128b Domestic Violence (2 specifications)

Facts

This was a Sergeant First Class, former 160th SOAR, facing a referred general court martial at Camp Humphreys on five Articles of the UCMJ. Maximum exposure ran into decades of confinement and a Dishonorable Discharge.

The case started at a bar.

Our client was at Bentley's, the bar inside Dragon Hill Lodge in Yongsan, when he saw another NCO, believed to be a Staff Sergeant, getting handsy and aggressive with two female lieutenants. Our client stepped in, checked on the lieutenants, and told the Staff Sergeant to back off. The Staff Sergeant was drunk, loud, and obnoxious. He told our client he was going to beat his ass later. Our client blew it off and walked outside for air. He still had a rocks glass in his hand.

Outside the hotel, in view of the CCTV cameras, the Staff Sergeant came up on him again, got in his face, and started talking trash. On video, it looked bad. The clip showed our client hit first. He struck the Staff Sergeant with the rocks glass in his hand, cutting him across the face and near the eye socket. Our client took him to the ground and controlled him with a martial arts hold until other people intervened.

What the camera could not capture was the Staff Sergeant counting down right in our client's face. He started with "three, two." Our client did not wait for "one." He believed the Staff Sergeant was about to swing, and he struck first.

The Government charged two assault specifications arising from the glass strike, including aggravated assault with a dangerous weapon.

Then the Government expanded the fight.

Our client had a prior GOMOR in his file from Fort Campbell. The original allegation had come out of an inappropriate relationship with his neighbor, who happened to be married to a senior CID agent. As our client was preparing to PCS to Korea, the two of them went tubing on the river. The woman got drunk. They argued because she did not want him to leave. The argument got ugly. She started throwing rocks at our client and threw his belongings into the river. He threw her phone in and walked off, then called another 160th SOAR Soldier to pick him up.

As our client and his buddy were driving back, they saw the woman walking alone down a quiet road. They could have kept driving. They did not want to leave her stranded. They stopped and picked her up. She started hitting our client, slapping him, punching him. Once they got back to town, the story changed. She alleged that our client had beaten her, that he had been having an affair with her, and that the incident had involved a sexual assault.

That allegation had originally been handled administratively as a GOMOR. After the Dragon Hill Lodge fight in Korea, the Government reached back and pulled the Fort Campbell allegation into the court martial as the Article 128b domestic violence specifications. The Article 117a image distribution specs and the Article 115 threat spec ran out of the Fort Campbell relationship. The Article 90 willful disobedience spec alleged disobedience of a Captain's no contact order over three months.

Charges were preferred in January 2022. The case was referred to general court martial in April 2022.

Our client retained Bilecki pre preferral. We prepared to contest the image-distribution allegations and the evidence from the Fort Campbell relationship.

The defense fight at trial centered on the M.R.E. 412 motion. The Government moved in July 2022 to bar evidence of the Fort Campbell relationship's documentary record on the alleged victim's side. We replied under M.R.E. 412(b)(1)(C) constitutional exception, M.R.E. 401, and M.R.E. 403, arguing that the court needed to consider the particular relationship evidence relevant to the image-distribution and threat allegations. We explained why excluding that evidence would impair the defense. The motion required the judge to assess the evidence and the applicable limits, not simply admit the entire relationship history.

Chapter 10 Discharge in Lieu of Trial by Court-Martial was disapproved by the Convening Authority. The case proceeded to GCM.

The Plea Agreement was signed in August 2022. It carved out the worst of the charge sheet.

Charge IV, the Yongsan glass container aggravated assault charge, was withdrawn and dismissed under R.C.M. 604(a). On the Article 117a specifications, the plea was guilty by exceptions and substitutions, narrowing the harm theory to "personal relationships" only and excising the broader harm theories the prosecution had charged. On Article 128b Specification 1, the Fort Campbell DV strike, the plea was guilty by exceptions, excising the pickup and drop conduct. Article 128b Specification 2, the substantial bodily harm temporary unconsciousness theory, came out as not guilty.

Tim Bilecki traveled to Camp Humphreys, Korea for the trial. Trial was August 2022, military judge alone. The plea agreement capped confinement at 0 to 180 days, capped reduction at three grades to E-4, and prohibited a punitive discharge.

The military judge sentenced our client to 150 days of confinement and reduced him from E-7 to E-5. There was no punitive discharge, forfeiture, fine or reprimand.

Result: Charge IV dismissed. 117a narrowed. 128b Spec 2 acquitted. 150 days confinement, reduction to E-5, no kick.

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FAQ

Q: How did the video affect the defense of the bar fight?
The video showed our client strike first with the glass. His account supplied something the camera could not capture: the earlier threat and the countdown immediately before the blow. Those facts mattered to his claim of self-defense, but the degree of force still had to be addressed. The agreement ultimately removed the aggravated-assault charge; the case did not end with a judicial finding that the glass strike was justified.

Q: What did the agreement accomplish on the other allegations?
It narrowed the conduct our client admitted in the image-distribution and domestic-violence specifications and prohibited a punitive discharge. The military judge imposed 150 days of confinement and reduction to E-5. The case involved convictions and punishment, but our client left court without a punitive discharge and with less confinement and reduction than the agreement permitted.