Q. What can a black service member do if he gets court-martialed while white service members who committed similar offenses only received nonjudicial punishment?

A. Government prosecutors, in both the military and civilian realms, are afforded a great deal of discretion when making prosecutorial decisions. However, as we have seen in the news, this prosecutorial discretion has come under fire. That is especially true in cases where white police officers have killed black people.

Military courts have long held that "[p]rosecutorial discretion in deciding whom to prosecute cannot be based on race," as the U.S. Court of Appeals for the Armed Forces noted in U.S. v. Keith M. Henry (1995). Service members who believe they are being prosecuted more aggressively than members of another race can raise the issue of selective or discriminatory prosecution. This is very different from raising the issue of disparate treatment, which alleges a convicted service member was punished more harshly than similarly situated service members, the court noted. "The selective-prosecution allegation, on the other hand, is addressed at the prosecution function; it seeks to 'go behind' the specific charging decisions; and it is specifically race-based," the court in Henry also stated.

Service members who want to raise this selective prosecution issue must show the government possessed "discriminatory intent." To do this, it must be shown that similarly situated service members were prosecuted differently, and the prosecution of the service member "is based on impermissible considerations such as race, religion, or the desire to prevent the accused from exercising his constitutional rights," the Air Force Court of Criminal Appeals noted in U.S. v. Robert F. Evereth (1996). Once a service member makes a primary showing of such vindictive or selective prosecution, the government then has the burden of disproving the impropriety of the prosecution.

In Evereth, the appellant, a black Air Force airman, claimed he was the victim of racially based selective prosecution because he was court-martialed for wrongfully using a controlled substance in violation of Article 112a. Meanwhile, four other white airmen received only nonjudicial punishment for committing the same offense. The court, however, did not find the appellant to be a victim of racially based selective prosecution because it found that the white airmen were not similarly situated to him. Their records lacked the serious derogatory information that was in the appellant's records, hence the decision to not prosecute them at a court-martial was justified.

In contrast, the appellant in Henry, a black Marine Corps private, was charged for being involved in three conspiracies. The court found it remained an "open question" whether the appellant and other minority service members "were prosecuted more aggressively than similarly situated non-minorities" in light of the fact that out of the 10 service members involved in the conspiracies, only the five black service members were placed in pretrial confinement. Further, only the black service members accused of committing forgery were required to submit handwriting exemplars. The appellant also claimed that one of the alleged white co-conspirators was granted blanket immunity and the other white alleged co-conspirators were undercharged, whereas the black alleged co-conspirators were "systematically overcharged for similar conduct." Ultimately, the court remanded the case to a lower court because, in part, the appellant had "made enough of a showing to warrant further consideration of his relinquishment of his selective-prosecution claim."

Service members who believe they are being aggressively or selectively prosecuted because of their race, religion, national origin, or sex should immediately consult with an experienced military law attorney. Depending on the circumstances, an attorney could raise the issue of selective prosecution.

Mathew B. Tully is a veteran of the Iraq and Afghanistan wars and a founding partner of Tully Rinckey PLLC. Email askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.