Navigating a Complaint of Wrongs under Article 138, UCMJ

The military justice system provides you, the service member, with the right to address wrongs committed by your commanding officer. Article 138, Uniform Code of Military Justice (UCMJ), empowers you to file a formal complaint and seek redress. This comprehensive guide equips you with the knowledge you need to navigate this process effectively.

A complaint of wrongs under Article 138, UCMJ, is a formal mechanism allowing service members to address a variety of issues within the military context. It serves as a safeguard against unfair treatment and ensures the protection of individual rights. When a commanding officer takes actions you believe violate regulations, exceed their authority, or demonstrate personal bias, you can utilize Article 138 to file a complaint.

Article 138 plays a critical role in maintaining a just and fair military justice system. It empowers service members to hold their superiors accountable for misconduct and ensures that power imbalances within the chain of command don’t lead to abuse. By upholding the principles of fairness and due process, Article 138 fosters a culture of respect and professionalism within the ranks. Additionally, by addressing grievances formally, service members contribute to a more transparent and accountable military justice system.

The scope of wrongs addressed under Article 138 is broad. Here’s a breakdown of common categories:

• Abuse of Authority:
  This occurs when a commanding officer uses their power for personal gain or in a way that violates regulations or undermines good order and discipline. Examples include assigning excessive duties for personal reasons, using derogatory language, or unfairly denying leave requests.
• Discrimination:
  Discrimination based on race, religion, gender, sexual orientation, or national origin is strictly prohibited in the military. If you believe you’ve been discriminated against in promotions, assignments, or disciplinary actions, you may have grounds for a complaint under Article 138.
• Retaliation:
  Taking negative action against a service member for filing a complaint, raising concerns, or exercising their legal rights is a serious offense. If you experience retaliation after filing a separate complaint or raising an issue within the chain of command, an Article 138 complaint can address this injustice.
• Violations of Regulations:
  Commanding officers are bound by specific regulations. If an order issued by your commanding officer violates established regulations or policies, you may file a complaint under Article 138.

While the core principles of Article 138 remain consistent across all branches, there may be slight variations in how each service defines a “wrong” within the context of this article. Here’s a brief overview:

• Army:
  The Army defines 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— In violation of law or regulation. Beyond the legitimate authority of that commanding officer. Arbitrary, capricious, or an abuse of discretion. Materially unfair” (AR 27-10, Chapter 19).
• Marine Corps & Navy:
  The Marine Corps and Navy define a wrong as “any act, omission, decision or order … taken, caused, or ratified by a respondent, pursuant to naval authority, that: Results in personal detriment, harm, or injury to a subordinate Service member; and Is a violation of law or regulation; unauthorized; arbitrary, capricious, or an abuse of discretion; or unjust” (JAGINST 5800.7G / Article 1150, Navy Regulations).
• Air Force:
  The Air Force defines a wrong as “A discretionary act or omission by a commander that adversely affects the petitioner personally and is: in violation of law or regulation; beyond the legitimate authority of that commander; arbitrary and capricious, or an abuse of authority; or clearly unfair or unjust” (AFI 51-505).
• Coast Guard:
  The Coast Guard defines a wrong as “any act, omission, decision or order, except those excluded by Subsection 25.B.2., taken, caused, or ratified by a commanding officer, under color of that officer’s military authority, that: results in personal detriment, harm, or injury to a military subordinate; and is without statutory or regulatory basis, unauthorized, an abuse of discretion, arbitrary and capricious, unjust or discriminatory” (COMDTINST M5810.1H, Chapter 25).

The complaint of wrongs process under Article 138 follows a specific sequence. Here’s a breakdown of the key steps:

Request for Redress

The initial step involves a formal request for redress directly addressed to your commanding officer. This request should be submitted in writing and outline the specific grievance you are experiencing. It’s crucial to document this request,  maintaining a copy for your records. The request for redress should reference Article 138, UCMJ, and clearly state the desired outcome,  whether it’s an apology, a change in orders, or some form of corrective action.

Informal Resolution

Before proceeding with a formal complaint, consider the possibility of resolving the issue informally. Open communication with your commanding officer or seeking guidance from a trusted mentor within the chain of command can sometimes lead to a satisfactory resolution without invoking Article 138. However, if informal attempts fail to address the issue or you feel uncomfortable approaching your commanding officer directly, then a formal complaint becomes the next step.

At Military Law Center, we believe strong client relationships are key to successful defense. We prioritize clear communication, keeping both clients and attorneys informed throughout the process. Our team is dedicated to empowering service members to actively participate in their own cases. We understand your case is about you, and we advocate fiercely to achieve your desired outcome.

Preparing the Formal Complaint

A well-structured and detailed formal complaint is essential for a successful outcome. Here’s what to include:

• Identification: Start by identifying yourself, your rank, and your unit.
• Subject: Clearly state the subject of the complaint, mentioning Article 138, UCMJ.
• Body: In the body of the complaint, provide a detailed narrative of the events leading up to your grievance. Be factual and objective, avoiding emotional language. Include specific dates, times, locations, and the names of any witnesses involved.
• Specific Wrongs: Clearly identify the specific actions or inactions by your commanding officer that you believe constitute a wrong under Article 138. Reference relevant regulations or policies that were violated, if applicable.
• Evidence: Attach any supporting evidence to bolster your claims. This could include emails, written documents, witness statements, or any other relevant material.
• Desired Outcome: Clearly articulate the desired outcome you seek from filing the complaint.

Submitting the Complaint

Once the complaint is drafted and finalized, submit it to the appropriate authority within the chain of command. This will typically be the General Court-Martial Convening Authority (GCMCA) with oversight over your commanding officer.  Service regulations for each branch outline the specific submission process (See Additional Resources for links).

Timeline for Resolution

The military justice system prioritizes efficiency, but the timeline for resolving complaints under Article 138 can vary depending on the complexity of the case. Generally, service members have 90 days from the date they discover the wrong to file a complaint. It’s important to note that the 30 days your commanding officer has to respond to your initial request for redress don’t count towards the 90-day window for filing the formal complaint.

Potential Issues and Considerations

While Article 138 empowers service members to address wrongs, there are some potential challenges to consider:

• Fear of Retaliation: A common concern is the fear of reprisal from the commanding officer named in the complaint. It’s important to understand that Article 138 prohibits retaliation against service members for filing complaints. If you experience retaliation, you can file a separate complaint specifically addressing this issue.
• Exhaustion of Remedies: The principle of exhaustion of remedies requires that you utilize all available informal channels within the chain of command before resorting to a formal complaint under Article 138.
• Seeking Legal Counsel: Considering the complexities of military law and the potential consequences of a complaint, seeking legal advice from a qualified military defense attorney is highly recommended. An attorney can guide you through the process, ensure your complaint is structured correctly, and advocate for your rights throughout the proceedings.
• Deadlines and Procedural Requirements: Strict deadlines and procedural requirements exist for filing complaints under Article 138. Missing deadlines or failing to follow proper procedures can result in the dismissal of your complaint.

Military Law Center: Your Trusted Guide

Military Law Center stands ready to assist you with navigating the complexities of a complaint of wrongs under Article 138. Our team of experienced attorneys possesses a deep understanding of military law and the intricacies of the Article 138 process.  We will:

• Review your case thoroughly and advise you on the merits of filing a complaint.
• Guide you through the process step-by-step, ensuring all deadlines are met and procedures are followed correctly.
• Draft a compelling and well-structured formal complaint that clearly outlines your grievance and desired outcome.
• Aggressively advocate for your rights and fight for a positive resolution to your case.
• Protect your career and ensure fair treatment within the military justice system.

Don’t allow a wrong to go unaddressed. Contact Military Law Center today for a free consultation. Call us at (760) 536-9038

Upholding the principles of fairness and due process is fundamental to a just and effective military justice system. Article 138, UCMJ, empowers service members to hold their superiors accountable for misconduct and ensures they have a voice when wronged. By understanding your rights and taking action through the complaint of wrongs process, you contribute to a culture of accountability and professionalism within the ranks.

Remember:

• Document Everything: Maintain a record of all communications, requests, and actions related to your grievance. This documentation will be crucial if you proceed with a formal complaint.
• Seek Support: Don’t hesitate to seek guidance from a trusted mentor within the chain of command or from a military legal assistance office (legal services office available on most bases).
• Take Action: If you believe a wrong has been committed, don’t stay silent. Article 138 provides you with a powerful tool to address the issue and seek redress.

Military Law Center is Here to Help

At Military Law Center, we understand the challenges service members face and are dedicated to protecting your rights. If you are considering filing a complaint of wrongs under Article 138, we encourage you to contact us for a free consultation. Our experienced attorneys will provide you with the legal guidance and support you need to navigate this process effectively.

Contact Us Today –(760) 536-9038

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