Blogs from November, 2022

Article 138, UCMJ, allows service members who have been wronged by their commanding officer to petition a superior commissioned officer for relief. When used correctly, Article 138 complaints are a powerful tool to stop abusive commanders from unlawfully punishing or otherwise adversely impacting a service members’ rights. 

Military Justice Attorneys has decades of experience representing service members and understands how to effectively lodge an Article 138 complaint. Contact one of our military defense lawyers today to learn more.

ARTICLE 138, UCMJ

Article 138 of the UCMJ, Complaints of wrongs, provides a means of redress to service members who believe they have been wronged by their commanding officer. Article 138, UCMJ, states:

“Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings had thereon.”

STATUTORY RIGHT TO SUBMIT A COMPLAINT

Service members have a statutory right to submit a complaint under Article 138, UCMJ. As such, commanders are legally prohibited from restricting the submission of such complaints or retaliating against a service member who submits a complaint.

While the right to submit an Article 138 complaint is created by law, each branch has specific guidance establishing the policies and procedures to submit and dispose of complaints:

• Air Force (AFI 51-505)
• Army (AR 27-10)
• Coast Guard (COMDTINST M5810.1H)
• Marine Corps (JAGINST 5800.7F)
• Navy (NAVREGS Article 1150)

*This article will primarily discuss Article 138 complaints in the Army. Service members considering filing an Article 138 complaint should speak to one of our Military Justice Attorneys for specific guidance about their case.

LIMITATIONS ON ARTICLE 138 COMPLAINTS

Not just anyone can bring a complaint pursuant to Article 138, UCMJ. A complaint of wrongs under Article 138 can only be brought by members of the Armed Forces against their commanding officer. The commanding officer must have been in the service member’s chain of command at the time of the alleged wrong and was authorized to impose nonjudicial punishment (also known as Article 15 punishment and Captain’s Mast) on the service member.

Additionally, not every perceived injustice can form the basis of an Article 138 Complaint. In order to qualify under Article 138, UCMJ, the service member must show they were wronged by their commanding officer. Army regulations define a “wrong” as a “discretionary act or omission by a commanding officer, under color of Federal military authority, that adversely affects the complainant personally and that is:

1. In violation of law or regulation;
2. Beyond the legitimate authority of that commanding officer;
3. Arbitrary, capricious, or an abuse of discretion, or
4.  Materially unfair.”

Generally, Article 138 complaints must be brought within 90 days of discovering the wrong.

PREREQUISITES FOR FILING AN ARTICLE 138 COMPLAINT

Before filing an Article 138 complaint, a service member must first notify their commanding officer of the wrong and ask for relief. This initial request for redress must—

1. Be in writing and signed by the complainant;
2. Clearly identify the relationship between the complainant and the respondent (commanding officer);
3. Clearly identify the date and nature of the alleged wrong;
4. Clearly identify the specific redress desired; and
5. Be submitted through command channels to the respondent commanding officer.

See AR 27-10, paragraph 19-6.

In the Army, Commanders in the Regular Army must respond to an initial request for redress within 15 days after receiving the request. Reserve Commanders must respond within 60 days of receipt. The Commander’s response must “specifically address what redress the commander is granting or otherwise state why redress is denied.” A commanding officer’s failure to timely respond can be treated as a denial.

ARTICLE 138 COMPLAINT REQUIREMENTS

 If an initial request for redress is unsuccessful, a service member may submit an Article 138 complaint to the General Court-Martial Convening Authority (GCMCA) who had jurisdiction over them at the time of the alleged wrong. Under Army Regulations, an Article 138 complaint must:

1. Be in writing and signed by the complainant;
2. Be addressed to the GCMCA with jurisdiction over the respondent at the time of the alleged wrong;
3. Clearly identify the complainant’s current military organization and address;
4. Clearly identify the complainant’s military organization at the time of the wrong;
5. Clearly identify the commanding officer who the Soldier believes committed the wrong;
6. Indicate the date a written initial request for redress was submitted to that commanding officer, and the date of the respondent commanding officer’s response or lack thereof;
7. Specifically state that it is a complaint submitted pursuant to Article 138 and any applicable regulation;
8. Clearly and concisely describe the specific wrong or wrongs complained of. When not readily apparent, state the reason the complainant considers it a wrong;
9. State the specific redress the complainant seeks. Unless it is readily apparent, state the reason the complainant considers the redress appropriate; and
10. Have attached to it— (a) The complainant’s initial request for redress and the commanding officer’s response, if any; and (b) Any supporting information or documents the complainant desires to be considered.

Article 138 complaints may be submitted to any superior commissioned officer.

TAKING ACTION ON THE COMPLAINT

Upon receipt of an Article 138 complaint, the GCMCA will determine whether the complaint is legally and factually sufficient in accordance with service regulations. Deficient complaints are generally not acted on and are returned to the complainant with a statement explaining how the complaint is deficient and how it can be corrected. A GCMCA may, however, waive certain deficiencies in a complaint for “good cause.”

If the complaint is legally and factually sufficient, the GCMCA must determine if the alleged wrong is appropriate for review under Article 138. An alleged wrong will not be considered when “other adequate processes exist for addressing the wrong alleged in the complaint.” Examples of alleged wrongs that are typically not considered as appropriate for Article 138 complaints include:

1. Matters relating to courts-martial, NJP, and similar actions taken pursuant to military criminal law regulations;
2. Officer or enlisted elimination actions;
3. Whistleblower reprisal allegations reported pursuant to 10 USC 1034;
4. Withdrawals of flying status;
5. Appeals from findings of pecuniary liability;
6. Appeals from administrative reductions in enlisted grades;
7. Appeals from evaluation reports; and
8. Filing of adverse information in official personnel records;

If the GCMCA finds that a complaint is sufficient and requests redress that is appropriate under Article 138, the GCMCA is required to “examine into the complaint.” This examination must result in specific findings regarding each alleged wrong and whether the act or omission complained of (1) violated any law or regulation, (2) was beyond the commanding officer legitimate authority, (3) was arbitrary, capricious, or an abuse of discretion, or (4) is materially unfair.

The GCMCA must act personally on the Article 138 complaint and notify the service member whether redress was denied or granted.

PROTECT YOUR FREEDOM AND YOUR MILITARY CAREER

Article 138 complaints are a powerful tool service members can use to stop commanders from taking unlawful action against them. Military Justice Attorneys has represented service members for decades and understands how to effectively lodge an Article 138 complaint. Contact one of our military defense lawyers today to learn more.

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