Yes. Military attorneys can and do review command memoranda, and when a memo uses unrelated unit performance as a stated rationale for action against an individual, that review becomes especially important. The reason is that such reasoning can raise questions about whether a decision rests on a proper, individualized basis or whether it reflects improper influence. This article explains how that review fits into military justice and administrative practice.
Where legal review of command documents comes from
Commanders rely on legal advisors for a range of decisions. In the court-martial process, a convening authority works with a staff judge advocate, and Article 34 of the UCMJ requires advice from the staff judge advocate before certain charges may be referred to a general court-martial. That advice examines whether the charges are warranted by the evidence and whether the convening authority has jurisdiction, among other things. Outside the court-martial setting, military attorneys also review administrative actions, nonjudicial punishment paperwork, separation packages, and the memoranda commanders use to document and justify decisions.
When a command memo states a rationale, the rationale itself is part of what counsel evaluates. A memo that justifies action against one service member by pointing to the performance of an unrelated unit invites scrutiny because the stated basis does not obviously connect to that individual’s conduct. Counsel can flag the disconnect, ask whether the real basis is documented, and advise the command on whether the reasoning is legally sound.
The unlawful command influence concern
The most serious legal problem that unrelated-unit reasoning can implicate is unlawful command influence. Article 37 of the UCMJ, codified at 10 U.S.C. 837, is the statutory prohibition. It bars a convening authority or other commanding officer from censuring, reprimanding, or admonishing a court-martial or its members, military judge, or counsel with respect to findings, sentence, or the exercise of judicial functions. It also prohibits any person subject to the UCMJ from attempting to coerce or, by unauthorized means, influence the action of a court-martial or the action of a convening, approving, or reviewing authority with respect to judicial acts.
Courts recognize two forms of the problem: actual unlawful command influence and the appearance of unlawful command influence. The populations most often affected are subordinate commanders, potential panel members, and potential witnesses. A memo that imports a unit’s general performance into an individual decision, or that signals a desired outcome based on factors unrelated to the person, can create either actual influence or the appearance of it. Where unlawful command influence is found, the results of a court-martial may be challenged and in some cases overturned.
Reviewing such a memo is therefore not a formality. Counsel may need to assess whether the document, or the climate it reflects, has tainted decisions that are supposed to be made independently. Identifying the problem early allows the command to correct course and allows the defense, if the matter reaches litigation, to raise the issue.
Reviewing rationale in administrative actions
Not every command memo is part of a court-martial. Many appear in administrative contexts such as reprimands, evaluation comments, or involuntary separation processing. In those settings, the legal questions differ but review remains valuable. Counsel can examine whether a stated rationale is individualized to the service member, whether it rests on accurate facts, and whether it follows the governing regulation. A rationale that leans on unrelated unit performance may be vulnerable on the ground that it is arbitrary or that it fails to address the individual’s own record.
Defense counsel reviewing such a memo can use the flawed rationale to contest the action through whatever process applies, whether that is a rebuttal, an appeal, or a hearing. Government counsel advising the command can recommend rewriting the memo to rest on a sound, individualized basis, which protects the action from later challenge.
Practical points
Several practical points follow. First, military attorneys, both those advising commands and those representing service members, routinely review command memoranda, and a stated rationale is fair game for that review. Second, when the rationale references unrelated unit performance, counsel should consider whether the reasoning is individualized and lawful, and whether it raises an Article 37 unlawful command influence concern in any connected justice proceeding. Third, the consequences of a flawed rationale range from administrative reversal to, in the court-martial context, potential challenge to the proceeding.
A service member who sees a command document that justifies action against them by pointing to matters unrelated to their own conduct should preserve the document and consult counsel. The analysis depends on the specific context, the governing regulation, and whether any justice proceeding is involved. This article offers general information and is not legal advice for a particular case.
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.