When a command’s justification for an adverse action, such as a poor evaluation or a removal from a position, is based on a “command climate” rationale that appears to mask personal bias, a military attorney can provide a defense by attacking the pretextual nature of the command’s reasoning. The legal defense is that the action is not a legitimate exercise of command discretion but is an arbitrary and capricious decision motivated by an improper personal animosity.
The attorney’s first step is to gather circumstantial evidence to prove the bias. This involves documenting a history of conflict between the leader and the service member, and collecting sworn statements from other witnesses who have observed the leader’s unfair or hostile treatment of their client. The attorney will contrast the vague “climate” justification with their client’s actual, documented record of excellent performance, arguing that the two are inconsistent and that the bias is the only logical explanation for the adverse action.
In an appeal or a complaint to the Inspector General, the attorney will present this evidence to show a pattern of a leader targeting their client for personal reasons. They will argue that “command climate” is being used as a subjective and unverifiable excuse to cover for the leader’s personal bias. By demonstrating that the official justification is a pretext, the attorney can prove that the action was an abuse of authority, which can lead to the action being overturned and the leader being held accountable for their misconduct.