Article 138 Complaints

Article 138 of the UCMJ, “Complaints of wrongs”, provides a means of redress to servicemembers who believe they have been wronged by their commanding officer. Commanders are prohibited from restricting the filing of Article 138 Complaints or retaliating against a servicemember for submitting a complaint.

While each service has specific regulations governing submissions under Article 138, a “wrong” is generally understood 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.”

Article 138 is a powerful tool for servicemembers to quickly raise an injustice to their commanding officers. Military Justice Attorneys has represented servicemembers for decades and understands how to effectively lodge an Article 138 Complaint. Call us today for your consultation.

What is an Article 138 Complaint Under the UCMJ?

An Article 138 complaint is a formal mechanism for service members to address grievances against their commanding officers. It is an article in the UCMJ that allows military personnel who believe they have been wronged by an act or omission of their commander to seek redress. The process ensures accountability within the chain of command and offers service members an avenue to voice concerns without fear of reprisal. It is a critical safeguard for maintaining fairness, discipline, and trust in military operations. However, the complaint must pertain to a personal grievance, and the issue must fall outside the scope of disciplinary action under the UCMJ.

Who Can File an Article 138 Complaint?

Any member of the armed forces who believes himself wronged by his commanding officer, after refused redress, can file an Article 138 complaint. The service member must have been wronged by a commanding officer’s act or omission that affects them personally and unjustly. Complaints may not be filed on behalf of others or for general grievances unrelated to personal harm. Additionally, the issue at hand must not have been addressed through other administrative or disciplinary processes, as Article 138 complaints are designed to provide redress when other remedies are unavailable or inadequate.

What are the Steps Involved in Filing an Article 138 Complaint?

The process involves two primary steps. First, the service member must seek redress from the commander who committed the alleged wrong. This step typically involves submitting a formal written request, clearly stating the issue and desired remedy. If the commander denies the request or does not provide a satisfactory resolution, the service member may proceed to the second step: filing a formal Article 138 complaint. This complaint is submitted through the chain of command to the officer exercising general court-martial convening authority (GCMCA) over the officer against whole it is made.  The senior officer may refer the matter for further investigation and resolution.

What Constitutes a Valid Article 138 Complaint?

A valid Article 138 complaint must meet specific criteria. It must involve a wrong committed by a commanding officer through an act, decision, or omission that is unjust, unfair, or improper. The complaint must not involve matters subject to judicial review, such as court-martial decisions or issues already addressed through administrative appeals. Additionally, the complaint must be submitted within a reasonable timeframe, typically within 90 days of the alleged wrong.

Can an Article 138 Complaint Address Punishment Received Under the UCMJ?

No, Article 138 complaints cannot be used to challenge disciplinary actions taken under the UCMJ, such as non-judicial punishment (NJP) or court-martial convictions. These matters have their own appeal processes. Instead, Article 138 complaints are intended to address grievances related to administrative or personal wrongs outside the scope of disciplinary proceedings. For example, a service member might file a complaint if they believe their commander abused their discretion or made a decision in violation of law or regulation.

What Happens After an Article 138 Complaint is Filed?

Once a complaint is submitted, the superior officer or their designee reviews it to determine its validity. If the complaint meets the criteria, an investigation may be initiated. This investigation can involve reviewing records, interviewing witnesses, and examining relevant evidence. The findings are used to decide whether the grievance is substantiated and if corrective action is required. The service member will be notified of the outcome, and if the complaint is upheld, appropriate remedies will be implemented.

Are There Risks Associated with Filing an Article 138 Complaint?

Filing an Article 138 complaint can feel intimidating, as it involves challenging a superior officer. However, retaliation or reprisal against a service member for filing a legitimate complaint is prohibited under military regulations. If a service member experiences retaliation, they can report it through other channels, such as the Inspector General. While there may be concerns about potential impacts on relationships within the chain of command, the complaint process is designed to protect the rights of service members and promote accountability.

How is an Article 138 Complaint Different from an Inspector General (IG) Complaint?

An Article 138 complaint specifically addresses personal grievances against a commanding officer, while an IG complaint covers broader issues, such as violations of law, policy, or ethical standards more generally. IG complaints can address systemic problems, workplace misconduct, or retaliation, whereas Article 138 complaints focus on individual wrongs committed by commanders. In some cases, service members may file both types of complaints if their issue involves overlapping concerns.