Yes, a military member can and should challenge the use of an “informal complaint” as the sole basis for the formal referral of court-martial charges. The referral of charges is a serious legal step that should be based on a thorough and impartial investigation that has substantiated the allegations with credible evidence. An “informal complaint” is often unsworn, unverified, and may be nothing more than a rumor or a disgruntled person’s biased account. It is not, by itself, sufficient evidence to justify a criminal prosecution.
A military defense attorney would attack the legal and factual sufficiency of the referral. They would file a motion with the military judge, arguing that the commander abused their discretion by referring the charges to trial based on such flimsy evidence. The attorney would argue that the command had a duty to conduct a proper, formal investigation (such as an AR 15-6 or a law enforcement investigation) to determine if the informal complaint had any merit before proceeding with charges.
The defense would contend that the failure to investigate the informal complaint is a due process violation. They would argue that the referral is based on a mere allegation, not on evidence, and therefore lacks a good-faith basis. If the judge agrees that the commander’s decision was not based on a reasoned review of actual evidence but on an unsubstantiated informal complaint, the judge could find that the referral was improper and could grant a remedy, which might include dismissing the charges for a lack of sufficient pretrial investigation.