When several service members engage in similar conduct but only one of them is referred to a court-martial, the natural question is whether that single referral can be challenged as unfair. The short answer is that the convening authority’s charging and referral decisions enjoy wide deference, but they are not beyond review. The accused who believes he or she was singled out has a recognized, if demanding, avenue to attack the decision. Understanding how that review works requires separating who holds the discretion, what standard governs its exercise, and what an accused must prove to overturn it.
Where Referral Discretion Actually Sits
In the military justice system, the decision to refer charges to a court-martial belongs to the convening authority, a commander, rather than to a prosecutor in the civilian sense. The staff judge advocate advises the commander, and under Article 34 of the Uniform Code of Military Justice that advice must address whether there is probable cause to believe the accused committed the charged offense, whether a court-martial would have jurisdiction, and whether the specification states an offense. If the staff judge advocate concludes there is no probable cause for a charge, the convening authority may not refer it. Within those limits, however, the choice of whether and how to proceed against a particular member is a discretionary command judgment, and that is precisely why disparate treatment of similarly situated members raises a concern rather than an automatic defense.
Disparate Referral Is Not, By Itself, a Defect
The fact that one member was referred while others who did the same thing were not does not, standing alone, invalidate the referral. Equal protection and prosecutorial fairness do not require that every person who commits an offense be charged identically. Convening authorities legitimately weigh differences in rank, degree of involvement, prior record, evidence strength, cooperation, and the needs of good order and discipline. Two members can be factually similar in their misconduct yet meaningfully different in ways that justify different outcomes. A challenge therefore cannot rest on the bare observation of inconsistency; it must show that the inconsistency reflects an impermissible reason.
The Selective Prosecution Framework
Military courts borrow the constitutional selective prosecution doctrine that governs federal practice. Under that doctrine, framed by the Supreme Court in United States v. Armstrong, the accused must overcome a strong presumption that the charging decision was made in good faith. To prevail, the accused must establish two things by clear evidence. First, discriminatory effect, meaning that others who were similarly situated were not prosecuted. Second, discriminatory purpose, meaning that the decision to single out the accused was based on an impermissible classification such as race, religion, the exercise of a constitutional right, or another arbitrary and unjustifiable standard. Both elements are required. Showing only that others escaped charges satisfies the effect prong but says nothing about purpose, and most challenges fail at the purpose stage because command decisions usually rest on articulable, legitimate distinctions.
Blanket Policies and Improper Influence
A distinct line of military authority limits referral discretion when it is exercised through a rigid policy rather than individualized judgment. In United States v. Hawthorne, the Court of Military Appeals condemned a commander’s directive that all soldiers meeting a fixed criterion be tried by general court-martial, because such a policy displaces the case-by-case evaluation the system requires. The principle carries over to disparate referrals. If the reason only one member was referred turns out to be a mechanical or predetermined rule, or worse, the product of unlawful command influence, bias, or retaliation for protected activity, the defect lies not in mere inconsistency but in the abandonment of genuine discretion. Unlawful command influence in particular is treated as the mortal enemy of military justice, and evidence that a referral was driven by command pressure rather than the merits is independently reviewable.
How the Challenge Is Raised and Reviewed
The accused raises the issue before trial through a motion attacking the referral, typically a motion to dismiss for selective or vindictive prosecution or for unlawful command influence. Because the doctrine carries a presumption of regularity, the defense ordinarily must make a threshold showing before it is entitled to discovery into the government’s charging rationale. The military judge then evaluates whether the accused has met the demanding effect-and-purpose standard or has shown improper influence. On appeal, the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces review the decision, examining whether the referral reflected legitimate command judgment or impermissible motivation. The remedy, where a violation is established, can include dismissal of the affected charges.
Practical Takeaways
A member who is referred while peers are not should not assume the referral is automatically vulnerable, but should not assume it is bulletproof either. The decisive questions are whether the others were truly similarly situated and whether any impermissible motive, fixed policy, or command influence drove the singling out. Building a record matters: documenting the comparable conduct, the comparable members, and any signs of bias or pressure gives counsel the raw material to meet the threshold showing. Because the standard is high and the procedural posture is technical, an accused in this situation should consult experienced military defense counsel early, while the evidence of disparate treatment is still fresh and obtainable.
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.