Military investigations are supposed to be triggered by evidence of misconduct, not by personal conflict, command politics, or a desire to remove a difficult subordinate. When an investigation is opened for reasons unrelated to the alleged offense, or when the offense itself is a pretext for achieving some other command objective, the resulting charges may be vulnerable to dismissal on grounds that the prosecution is fundamentally tainted.
Establishing pretext is not simple. It requires evidence of the commander’s actual motivation, documentation of the circumstances that preceded the investigation, and a legal argument that connects those facts to the charges. Courts set a high bar for this kind of claim, and they are reluctant to second-guess command decisions without compelling evidence. But the argument exists, it has succeeded in documented cases, and it must be built from the earliest stages of the case if it is going to be available at trial.
Defining Pretext in a Military Investigation Context
A pretextual investigation is one that is nominally directed at discovering evidence of a crime but is actually motivated by a purpose unrelated to the offense charged. In the military context, this typically arises when a commander who has personal or professional reasons to remove a subordinate uses the investigative process as a mechanism for achieving that goal. The allegation that triggered the investigation may be real, but the decision to investigate, and the manner in which the investigation was conducted, is driven by something other than a good-faith pursuit of justice.
Pretext in this sense is distinct from bias or animus, though the two often coexist. A commander can dislike a subordinate and still conduct a legitimate investigation. What converts animus into pretext is the use of the investigative process in a way that departs from how similar allegations against non-targeted individuals would be handled, or that pursues charges the commander knows or suspects are unsupported. Establishing pretext requires showing not just that the commander was motivated by personal considerations, but that those considerations infected the specific decisions that produced the charges.
Common Scenarios Where Investigations Are Used as Pretext
Pretextual investigations most commonly arise in specific factual patterns. A subordinate who has filed a complaint against a commander, who is about to testify against a superior in another proceeding, or who has been a source of internal friction suddenly becomes the subject of an investigation for conduct that has been tolerated or overlooked in others. The investigation follows closely on the heels of the protected activity or the interpersonal conflict, and the timing is not coincidental.
Other common patterns include investigations that are opened on the basis of allegations the command knows to be unreliable, investigations that apply standards selectively in ways that reflect personal animosity rather than consistent enforcement, and investigations that pursue charges the command has been told are legally insufficient. In each pattern, the common thread is a disconnect between the stated justification for the investigation and the circumstances that actually prompted it.
The Legal Standard Courts Apply When Pretext Is Alleged
Courts reviewing pretext claims apply a demanding standard. The accused must demonstrate that the investigation was initiated or conducted for an improper purpose, that the improper purpose had a direct effect on the charges or the manner in which the case proceeded, and that the remedy sought, typically dismissal of charges, is proportionate to the severity of the constitutional or regulatory violation. The burden of production is on the accused, and the evidence required to meet it is specific rather than general.
A showing that a commander disliked the accused is not sufficient on its own. Courts require evidence that the dislike motivated the specific investigative or charging decisions being challenged. The closer in time the investigation follows the triggering event, the more documented the commander’s hostility toward the accused, and the more selectively the investigation was pursued relative to similarly situated individuals, the stronger the pretext argument becomes. But the legal bar is high, and courts are reluctant to second-guess command decisions about investigation and prosecution without compelling evidence of improper motivation.
How to Document Evidence of Command Motivation Early
Building a pretext argument requires evidence that is often available only at the beginning of the case and becomes harder to obtain as time passes. The timing of the investigation relative to any protected activity or interpersonal conflict must be documented with precision. Any statements the commander made about the accused before the investigation began should be preserved, including informal comments reported by witnesses. The pattern of how similar conduct by other service members was handled must be established through records requests and witness accounts.
Defense counsel who begin this documentary effort immediately upon retention are positioned to build the factual record while it is still accessible. Witnesses whose accounts of the command environment are most probative are often still in the unit at the beginning of the case and may have transferred or separated by the time trial approaches. Document requests submitted early produce records that may be altered or harder to obtain later. Every day of delay in beginning this work is a day that potential evidence becomes less accessible.
Building the Pretext Argument Into Your Defense from Day One
The pretext argument is not something that can be developed as an afterthought. It must be woven into the defense strategy from the earliest stage, because the evidence it requires must be identified and preserved before it disappears. Defense counsel who recognize the potential for a pretext claim in a case must simultaneously pursue the investigation of the government’s evidence on the merits and the investigation of the command circumstances that produced the charges.
When the pretext argument is fully developed and documented, it can be raised in a pretrial motion to dismiss, presented as context that colors the panel’s assessment of the government’s case, or preserved for post-conviction appellate review if the trial-level motion is denied. The argument that is built from the beginning of the case has the most complete evidentiary foundation and the greatest likelihood of success at whichever stage it is most effectively presented.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.