The primary recourse a military attorney has is to challenge the legal and factual sufficiency of the adverse action itself. For any adverse action—from a letter of reprimand to an administrative separation—to be valid, it must be supported by a “preponderance of the evidence.” If the command’s supporting documentation is incomplete, missing key evidence, or relies on unsubstantiated allegations, it fails to meet this burden of proof. The attorney’s job is to expose this weakness to the decision-maker or an appellate body.
The attorney would meticulously dissect the incomplete packet in a formal rebuttal or appeal. They would create a detailed list of every piece of missing evidence, such as the absence of witness statements, a lack of a formal investigation report, or the failure to include exculpatory information. The argument would be that the command is asking a decision-maker to render a judgment based on a biased and incomplete set of facts. This is a powerful due process argument that contends the action is arbitrary and capricious because it is not based on a thorough and impartial review of all available information.
If the adverse action proceeds, the attorney will continue to raise this issue at every level of appeal. For example, at a separation board, the attorney would argue to the board members that the government has failed to present a credible case due to the glaring holes in its documentation. They can argue that these gaps create reasonable doubt and that the board cannot, in good conscience, find against the service member. This strategy aims to have the adverse action dismissed entirely due to insufficient evidence.