No, a commander’s personal conflict with a service member is not a proper justification for referring charges to a court-martial. The decision to prosecute a service member must be an exercise of impartial command discretion based on credible evidence that a specific offense under the UCMJ was committed. A commander who refers charges based on personal animosity, a personality conflict, or a desire to retaliate against a soldier they dislike is engaging in a gross abuse of their authority. This is known as “selective prosecution” or a “vindictive prosecution.”
A military defense attorney who suspects that a referral is motivated by personal conflict will investigate the commander’s motives. They will gather evidence of the conflict, such as sworn statements from other soldiers who have witnessed the commander’s bias or unfair treatment of their client. They will look for evidence of disparate treatment, showing that other soldiers who committed similar offenses were not court-martialed.
The attorney will then file a motion with the military judge to have the charges dismissed for selective or vindictive prosecution. The motion will present the evidence of the commander’s improper motive. To win this motion, the defense must show that the commander’s decision to prosecute was based on an unjustifiable standard, such as personal dislike, and that other similarly situated individuals were not prosecuted. If the judge agrees, they can dismiss the charges as a remedy for the command’s abuse of its prosecutorial discretion.