Article 138 Complaint
November 25, 2019Generally, Servicemembers are aware that they can file complaints with the Inspector General’s Office or with members of Congress. However, Servicemembers are generally unaware of one of their most powerful avenues to complain: Article 138 of the Uniform Code of Military Justice. Here is the complete text of Article 138:
“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.”
What this means: if a Servicemember disagrees with a Commander’s decision (after asking him/her to reconsider) he/she can file an Article 138 complaint. The complaint then goes to a General Officer who has to investigate the matter and then report it to the Secretary of their Service (i.e. The Secretary of the Army).
There are some caveats. Generally, the decision complained about has to be a discretionary one with no other avenues of redress (i.e. denying a Servicemember’s pass, ordering any form of restriction, denying a school request, assignment to an unwanted position/unit). Additionally, a Servicemember must give the Commander in question a chance to reconsider. The best practice is for a Servicemember to give the Commander written notice that they will file an Article 138 complaint within a certain number of days if a decision is not reversed or modified.
An Article 138 complaint is incredibly powerful. Most Commanders, even if they are right, are afraid of General Officers getting in their business. A lot of times, once a written request for redress is given to the Commander in question, a decision will be modified without having to get a General involved. However, Servicemembers should still be careful before filing an Article 138 complaint. Sometimes it can result in unwanted negative attention. A Servicemember should consult with a military attorney before filing either a request for redress or an Article 138 complaint.
This article was written by Attorney Matthew Barry