Bilecki Litigates Venue and Wins Retention for Marine Warrant Officer at Iwakuni

Bilecki Litigates Venue and Wins Retention for Marine Warrant Officer at Iwakuni

April 2022 (BOI retention August 2022)

Marine Corps Air Station Iwakuni, Japan

Marine Chief Warrant Officer 2 – W-2

Allegations: UCMJ Article 92 Sexual Harassment (4 specifications); UCMJ Article 93 Cruelty / Maltreatment of Subordinates (4 specifications); UCMJ Article 133 Conduct Unbecoming an Officer (1 specification)

Facts

A Marine Chief Warrant Officer 2 with multiple combat deployments and a clean disciplinary history was facing a referred general court-martial at MCAS Iwakuni on nine specifications across UCMJ Articles 92, 93, and 133. Maximum exposure on the charge sheet at general court-martial: years of confinement, Dismissal, federal felony record, and end of commission.

Our client had taken over the Maintenance Platoon at MCAS Iwakuni in 2018 and run the shop to standard for two years before COVID hit Japan and changed the calculus.

The unit fell apart when its experienced senior NCOs left at the same time.

The Marine Corps-wide PCS freeze during the pandemic kept his original NCOs in place longer than usual. When restrictions eased, that contingent rotated out in one fell swoop instead of a staggered rotation. Our client found himself the OIC and the deckplate supervisor of seventy-plus junior Marines until replacement NCOs filtered in. He held the line on standards. He set a uniform start time. He set a uniform end time. He walked the shop. The Marines who did not want to meet the standard he was setting did not like it.

The new NCOs began bringing personnel issues up the chain. The biggest one was an alleged inappropriate relationship between a Corporal in the shop and a junior Marine who had just arrived. Our client tried to address it directly. The Corporal denied the relationship. Around the holidays, the same Corporal and the same junior Marine were in a car accident together returning from a ski trip. The relationship was no longer deniable. Our client removed the Corporal from the Meritorious Promotion Board selection pool and moved to transfer him.

Just before that transfer was published, the Corporal filed an Equal Opportunity complaint against our client.

The Investigating Officer interviewed virtually every Marine in the unit. Five Marines' complaints were deemed credible enough to support a Report of Misconduct. The Convening General offered NJP. Our client refused it. He wanted the case in front of a jury. The Government preferred Article 92 sexual harassment, Article 93 cruelty and maltreatment, and Article 133 conduct unbecoming charges and referred the matter to a general court-martial.

That is when our client retained Bilecki.

The defense fight at the GCM was venue.

Japan was still under COVID entry restrictions that kept civilian defense counsel out of the country. We moved for transfer of venue to a CONUS location where civilian counsel could appear. The Military Judge indicated the venue change would be granted. Trial Counsel had a choice: try the case in a CONUS forum where the case would be litigated to verdict, or withdraw.

In late April 2022, the Convening General directed Trial Counsel to withdraw all charges under R.C.M. 604.

The general court-martial was over. All nine specifications across three Articles were dismissed without prejudice.

The Government then routed the case through the administrative track.

NJP was imposed by the Convening General. A Page 11 Administrative Remarks entry went into the record. The Marine was notified of a Board of Inquiry to show cause for retention.

The defense argument at the BOI carried three pieces. The complaining Corporal and several other complainants had separated, been administratively separated themselves, or refused to participate by the time the Board convened. The Government's witness pool had collapsed. We surfaced the original retaliation context: the EO complaint had been filed in the days before the Corporal's transfer for the inappropriate relationship was published, and immediately after our client had removed him from the Meritorious Promotion Board selection pool. Our client took the stand at the BOI and walked the Board through the operational reality of the deckplate environment after the COVID-era PCS freeze rotated out his entire senior NCO contingent in one cycle, the standards he was holding the platoon to, and the corrective actions he had taken on the alleged inappropriate relationship that had triggered the EO complaint.

Tim litigated the venue issue and later traveled to MCAS Iwakuni, Japan for the Board of Inquiry. The Board convened at MCAS Iwakuni in August 2022. The Board's Findings Worksheet substantiated substandard performance of duty (failure to demonstrate acceptable qualities of leadership, unsatisfactory performance of a Warrant Officer), a violation of Article 92, and a violation of Article 133. On the question of separation, the Board's recommendation was direct: the Board found that none of the reasons supported separation from the naval service and recommended closing the case. No minority report.

Result: All nine specifications withdrawn from the general court-martial and dismissed without prejudice; NJP and Page 11 imposed; BOI voted retention; Marine retained on active duty.

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FAQ

Q: How did the venue motion affect the court-martial?
R.C.M. 604 permits withdrawal of charges before findings. Withdrawal and dismissal are different acts, and a venue motion does not automatically require either. Here, restrictions on civilian counsel’s entry into Japan led the defense to seek a trial in the United States. After the judge indicated that the venue change would be granted, the convening authority withdrew the charges. The account reports that all nine specifications were dismissed without prejudice. NJP and a Board of Inquiry followed.

Q: How did the missing witnesses affect the Board of Inquiry?
Administrative boards may consider documentary evidence and are not universally limited to live testimony. Here, several complainants had separated or would not participate. Their absence weakened the Government’s presentation and gave the defense an opportunity to challenge the original investigation. The defense presented the retaliation chronology, the staffing problems after the pandemic rotation, and the officer’s testimony. The board substantiated several reasons for separation but concluded that none warranted separation and recommended retention.

Q: Did the Board of Inquiry reject every allegation?
No. The board substantiated substandard performance and violations of Articles 92 and 133. Bilecki nevertheless persuaded the board that those findings did not warrant separation. Retention followed the earlier withdrawal and dismissal of the court-martial charges, NJP and a Page 11 entry. Those separate outcomes are all part of the result.