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Should I Make an Article 138 Complaint Against My Commanding Officer?

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In the United States Armed Forces, commanders are given a lot of authority. Sometimes, whether purposeful or not, that authority can be abused in a manner that harms rank-and-file soldiers, sailors, marines, airmen, and guardians. When that happens, the service member should consider filing a complaint against his or her commanding officer under Article 138 of the Uniform Code of Military Justice (UCMJ).

Article 138 of the 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…”

When Might an Article 138 Complaint Be Appropriate

Article 138 itself uses the term “wronged” when describing when to use it. “Wronged” is a very broad term that each service has narrowed with its own regulations, too.

However, there are some basic principles for when an Article 138 complaint may be appropriate:

  • Commanding officer must be involved: Article 138 only applies to wrongs committed by an individual’s commanding officer. A supervisor, rater, or other person in authority, if not a commanding officer, is not an appropriate subject of an Article 138 complaint.
  • Final action required: Article 138 only applies to final actions taken by a commanding officer. For instance, if a commander is merely considering removing a member from a training program, that is not a basis to make an Article 138 complaint. However, the member’s actual removal from training may be.
  • No other option for relief: Most services do not allow Article 138 complaints when there are other options for relief or processes through which the service member can be heard. For example, a complaint that a commander imposed nonjudicial punishment typically is not allowed because the NJP process itself allows the service member to submit a statement and appeal the commander’s decision.
  • Timeliness of complaint: Generally, an Article 138 complaint must be filed within 90 days of when the service member learned of the wrong committed by the commanding officer. However, this requirement can be waived for good cause.
  • Examples of appropriate complaints: Common examples of appropriate complaints include the issuance of a formal or informal reprimand or counseling; unlawful or unwarranted restriction on liberty; and treating a service member differently than others for no legitimate reason (even if the treatment might otherwise be lawful).

How an Article 138 Complaint Works

The exact process and requirements for filing an Article 138 complaint vary between the services, but each one requires the complaint to first be filed with the commanding officer who committed the alleged wrong. If the commanding officer does not remedy the wrong to the service member’s satisfaction, the service member may make a complaint to the general court-martial convening authority (GCMCA) who exercises authority over the commanding officer. The GCMCA is usually a two-star general or flag officer. If the GCMCA (who usually is also a commanding officer) committed the alleged wrong, the authority is the next higher GCMCA, up to and including the Secretary of the military department. In all cases, the GCMCA’s action must be forwarded to the service’s Secretary, who acts as a sort of appellate authority. In sum, Article 138 gives even the lowest-ranking service members a statutory right to the attention of very senior officers and civilian officials.

Additional Considerations Before Filing an Article 138 Complaint

An Article 138 complaint is an important tool in any service member’s toolbox if he or she has been mistreated by a commander. However, it may not be the most effective tool, even when an Article 138 complaint is authorized. Sometimes an Inspector General complaint, contacting a congressman, or a less formal mediation process may be more suited to the problem at hand. An attorney with experience and knowledge of the pros and cons of all options can assist you in making the best decision possible. If an Article 138 complaint is the best option, an attorney can assist in preparing it so that your complaint is effectively communicated and your request for redress is compelling.

Trusted Help from a Civilian Attorney

At The Law Office of Patrick J. McLain, PLLC, we are led by Attorney Patrick McLain, who is a retired Marine Corps military judge and former federal prosecutor. He has vast experience in military criminal law and military disciplinary processes in 40 years in the field. Attorney Brad Sauer also spent a year and a half at the Pentagon while on active duty advising the Secretary of the Air Force and other senior leaders on Article 138 complaints. If you have been treated poorly during your service and don’t know what to do about it, you can start by trusting our insight and tenacity. We will help right the wrong you have experienced, which could mean using your right to file an Article 138 complaint or finding a more effective remedy.

Get more information by talking to our team today. Call (888) 606-3385 or submit an online contact form at any time.

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