When several service members are implicated in the same incident but only some face charges under Article 120 of the Uniform Code of Military Justice (10 U.S.C. § 920), the accused who is singled out may wonder whether the charging decision was unfair. One legal theory that addresses unequal charging is selective prosecution. It is a demanding defense to raise, and in the military context it must be framed against both the constitutional standard and the realities of command discretion. This article explains how the argument is built when there are multiple accused.
The constitutional standard
Selective prosecution is rooted in the equal protection guarantee that the Supreme Court has read into the Fifth Amendment’s Due Process Clause. The leading case is United States v. Armstrong, 517 U.S. 456 (1996). Under Armstrong, a prosecutor’s broad discretion in deciding whom to charge is presumed to be exercised in good faith and is not lightly second-guessed. To overcome that presumption, a defendant must show that the charging decision had both a discriminatory effect and a discriminatory purpose. The decision cannot rest on an arbitrary classification such as race, religion, or another constitutionally impermissible ground, and the mere fact that one person was charged while another was not is far from enough.
The two elements are distinct. Discriminatory effect means that similarly situated individuals outside the protected class were not prosecuted for comparable conduct. Discriminatory purpose means that the decision to prosecute was actually motivated by the impermissible ground, not merely that the outcome looks uneven. Both must be shown, which is what makes the defense so difficult.
Why multiple accused matters
A case with several people involved in the same alleged event is, in a sense, the natural setting for a selective prosecution argument because it supplies potential comparators. If two service members engaged in materially similar conduct, and only one was charged, the uncharged member is a starting point for the discriminatory-effect analysis. The defense will try to show that the accused and the uncharged person were genuinely similarly situated, meaning their roles, conduct, evidence against them, and culpability were comparable, and that the only meaningful difference was an impermissible characteristic.
The difficulty is that people involved in the same incident are rarely truly similarly situated. In a sexual offense case, the strength of the evidence, the presence or absence of consent issues, the role each person played, prior history, cooperation with investigators, and the seriousness of the specific conduct can all differ. The government will argue that any disparity in charging reflects these legitimate distinctions rather than discrimination. So the defense must do more than point out that others were not charged. It must dismantle the supposed differences and isolate an impermissible motive.
Building the argument step by step
Counsel typically proceeds in stages. First, identify the comparators among the co-involved members and gather everything known about their conduct and the evidence against them. Second, demonstrate that those comparators were similarly situated in every material respect. Third, connect the disparate treatment to a protected classification or other impermissible basis, using whatever circumstantial evidence is available, such as statements by decision makers, statistical patterns, or a documented history of uneven charging within the command. Fourth, address purpose directly, because effect alone does not establish a constitutional violation.
The discovery problem
A practical obstacle looms over the whole effort. Under Armstrong, a defendant generally cannot obtain discovery into the government’s charging decisions without first producing some evidence tending to show both discriminatory effect and discriminatory purpose. The discovery threshold is nearly as demanding as the ultimate proof. This creates a familiar bind. The internal reasoning that would prove discrimination usually lies in government files, but the defense cannot reach those files until it already has supporting evidence. In a multiple-accused case, the defense often must rely on what can be developed from the investigation itself, the comparators’ known treatment, and any admissions or patterns, to clear that initial threshold before seeking the prosecutor’s records.
The military overlay
The military adds another dimension. Charging decisions flow through the convening authority, a commander who exercises broad disposition discretion under the Rules for Courts-Martial. That discretion is wide, and military appellate courts respect it much as civilian courts respect prosecutorial discretion. At the same time, the military justice system has its own guardrail against improper influence on charging and adjudication. Article 37 of the UCMJ prohibits unlawful command influence. While unlawful command influence is a separate doctrine from selective prosecution, in a multiple-accused scenario the two can overlap, for example if a commander’s improper motive shaped who was charged. Capable defense counsel will assess both theories and may raise them together where the facts support it.
How the motion is litigated
Selective prosecution is raised by a pretrial motion to dismiss, supported by affidavits, documents, and any available evidence on effect and purpose. The defense bears the burden, and the military judge decides whether the threshold for relief, or at least for discovery, has been met. If the judge denies the motion, the issue can be preserved for review by the service Court of Criminal Appeals and the Court of Appeals for the Armed Forces. Because the standard is so high, the motion frequently fails on the merits, but litigating it can still expose weaknesses in the government’s case and create a record for appeal.
The bottom line
Arguing selective prosecution in an Article 120 case with multiple accused means satisfying the Armstrong framework: proving both that similarly situated co-involved members were not charged, which is the discriminatory-effect element, and that an impermissible motive drove the decision, which is the discriminatory-purpose element. The presence of comparators makes the argument conceivable, but the demanding proof and discovery thresholds, combined with broad military charging discretion, make it hard to win. A service member who believes he was singled out unfairly should consult experienced military defense counsel to evaluate the comparators, consider any unlawful command influence angle, and decide whether the motion is worth pursuing.
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.