It is highly improper and a potential abuse of discretion for a command to refer a collection of unrelated, repeat minor infractions to a general court-martial, which is the military’s most serious level of trial, reserved for felonies. While a pattern of minor misconduct can be the basis for administrative action, like a separation board, escalating minor infractions to a felony-level court-martial is a disproportionate response that a defense attorney would vigorously challenge.
The defense attorney’s first action would be to challenge the referral itself. They would submit a formal objection to the convening authority, arguing that a general court-martial does not have jurisdiction over a collection of purely minor offenses. They would contend that the referral is an abuse of the commander’s prosecutorial discretion and that the case should be handled at a much lower level, such as through non-judicial punishment (Article 15) or a summary court-martial.
If the case still proceeds, the attorney will make a motion to the military judge to dismiss the charges for being improperly referred. They will argue that aggregating minor infractions to try and create a serious case is a violation of due process. Even if the judge allows the case to proceed, the attorney will argue to the court-martial panel that the government is using the highest level of military court to prosecute what amounts to a series of petty offenses. This can often persuade a panel to acquit or to adjudge a very minimal sentence, viewing the prosecution as a case of severe government overreach.