When a commanding officer forwards a case toward a court-martial or an administrative board, that forwarding document sets the terms of what the accused must defend against. If the memo that moves the case forward rests on violations that do not exist, whether because the cited article does not criminalize the alleged conduct or because the cited regulation or offense is simply made up, the accused has real avenues to challenge it. The mechanism depends on whether the case is heading to a court-martial or to an administrative separation board, and the timing rules differ, so it pays to understand both tracks.
How charges move toward a court-martial
In the court-martial system, a case is built in stages. Charges are first preferred, meaning sworn, then forwarded up the chain with recommendations, and finally referred to a particular court-martial by the convening authority. The commanding officer’s forwarding or referral memo is part of that chain. The charge sheet itself lists the articles of the Uniform Code of Military Justice allegedly violated and the specifications describing the conduct.
If a charging document cites a non-existent violation, the problem usually takes one of two forms. Either a specification fails to state an offense, meaning the conduct described is not actually criminal under the article cited, or the document contains a defect in how the charges were preferred, forwarded, or referred. Both are challengeable, but through different rules.
Challenging a specification that states no offense
A specification that does not allege a real offense can be attacked under the Rules for Courts-Martial. Under RCM 907, a specification shall be dismissed if it fails to state an offense. This is the core remedy when a charge cites conduct that the cited article does not actually prohibit, or pairs an article with a specification whose facts do not match its elements.
Importantly, the failure-to-state-an-offense objection is durable. Unlike many pretrial objections, a claim that a specification does not allege an offense can be raised at any time during the proceedings, and even on appeal. So if the underlying violation does not exist as charged, the defense is not foreclosed by having missed an early deadline, although raising it promptly is always the better practice.
Challenging defects in preferral, forwarding, or referral
Defects in the process itself, including the forwarding or referral memo, fall under a different rule. Under RCM 905, motions raising defenses or objections based on defects in the preferral, forwarding, or referral of charges, other than jurisdictional defects, generally must be raised before entry of pleas, or they are waived. The military judge may grant relief from that waiver for good cause shown, but the accused should not count on it. If the referral memo mischaracterizes the case or cites violations that were never properly preferred, that kind of procedural defect should be raised early through a pretrial motion.
The burden framework on these motions is set by RCM 905: the moving party generally bears the burden of persuasion, and the standard is a preponderance of the evidence. So the defense must be prepared to show, more likely than not, that the cited violation does not exist or that the process was defective.
When the memo is part of an administrative separation
If the commanding officer’s memo is initiating an administrative separation rather than a court-martial, the challenge happens inside the administrative process. For enlisted Army soldiers, AR 635-200 governs, and the member has the right to written notice of the specific basis for separation, time to consult counsel, and an opportunity to respond, including the right to a board hearing in many cases. For officers, the show-cause board operates under AR 600-8-24. In either setting, the member can rebut the factual basis and argue that the cited grounds do not support separation, and a separation board can find the allegations unsupported. A memo premised on a non-existent regulatory violation is vulnerable precisely because the government must show a valid basis under a preponderance standard.
Practical strategy when violations are fabricated or misapplied
Several steps follow from this framework. First, the defense should read the cited article, regulation, or instruction against the conduct described and confirm whether the elements actually fit; a mismatch is the heart of a failure-to-state-an-offense argument. Second, the defense should verify current law, because the 2019 Military Justice Act renumbered many UCMJ articles and a memo may cite an outdated or wrong provision. Third, on the court-martial track, counsel must calendar the deadline: process defects before pleas under RCM 905, while a true failure to state an offense can be raised later under RCM 907. Fourth, the defense should document the defect in writing and preserve it for the record, because a clean record protects the issue for appeal.
It is also worth being precise about what a successful challenge accomplishes. Dismissing a defective specification or a defectively referred charge does not necessarily end the case; the government may be able to correct a curable defect, re-prefer, or re-refer. The challenge removes the flawed charge and forces the government to proceed only on what it can lawfully and accurately allege.
Bottom line
Yes, a commanding officer’s referral or forwarding memo can be challenged when it cites non-existent violations. On the court-martial track, a specification that fails to state an offense is subject to dismissal under RCM 907 and can be raised at any time, while defects in preferral, forwarding, or referral must generally be raised before pleas under RCM 905 or risk waiver. On the administrative track, the member rebuts the basis within the separation or show-cause process, where the government must justify the cited grounds by a preponderance of the evidence. The decisive question is always whether the cited violation actually exists and fits the alleged conduct under current law, so the first move is to compare the cited authority to the facts, verify the article numbering, and consult a military defense attorney to raise the right objection at the right time.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.