Military attorneys respond by challenging any action taken under the conflicting unit policy as being legally invalid. A fundamental principle of military law is that there is a clear hierarchy of regulations. Guidance and regulations issued at the service level (e.g., by the Department of the Army) are binding on all subordinate units. A local unit policy issued by a brigade or battalion commander that contradicts or is less restrictive than this higher-level guidance is unenforceable.
If a soldier is facing an adverse action based on one of these invalid unit policies, their attorney will attack the legality of the policy itself. In a rebuttal or an appeal, the attorney will cite both the local unit policy and the conflicting service-level regulation. They will clearly demonstrate the conflict and argue that, under the principle of preemption, the service-level guidance is the controlling authority.
The legal argument is that since the unit policy is invalid, any adverse action based upon it is also invalid. The soldier cannot be punished for violating a rule that was illegal for the command to have made in the first place. This is a very strong, often case-dispositive legal argument. It forces the command or an appellate body to recognize that the unit has exceeded its authority, which should result in the adverse action being completely overturned.