What Service Members Need to Know About How to File an Article 138 Complaint

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By Stephen Jewell for VT

Article 138 of the Uniform Code of Military Justice (UMCJ) is one of the most powerful rights for a service member wronged by their command. Despite its power, many service members seldom utilize Article 138 and are unaware of its usefulness. Under Article 138 of the UMCJ, every service member of the armed forces that believes they were wronged by the discretion of their commanding officer has the right to request a redress. While there are certain cases that can and cannot be filed under Article 138, any service member that is looking to file a complaint should know the stages for requesting a redress and what will be expected of them throughout this process.

What Matters Can be Addressed Under Article 138

There are a wide variety of issues that can be resolved through the Article 138 process. The key points to remember for an actionable complaint are whether the issue was (1) discretionary and (2) not subject to its own appeal process, such as an NCOER or GOMOR.

The classic example is a service member denied ordinary leave. This is generally within a commander’s discretion and not subject to a separate appeal process. Therefore, a service member would be well within their right to file an informal request for redress as a precursor to a formal Article 138 complaint. Such a claim, however, should not be filed until a commander formally denies the leave request. If a service member is merely told that their leave will be denied and doesn’t actually file a leave request, then an Article 138 would not be proper.

Although many different issues may be appropriate for an Article 138, there are certain grievances that are excluded or do not constitute an Article 138 complaint. As discussed, this most commonly applies to situations that have other means of appeal for a redress like performance evaluations, non-judicial punishments, and administrative discharge issues. Again, similar to which matter can be addressed, it would be wise to review which issues may be subject to an Article 138 complaint and those which have other avenues of appeal.

How to File an Article 138 Complaint

When requesting a redress, the first step any service member should take it to issue an informal request for corrective action to be taken. This is generally done in writing via a letter or memorandum to their commanding officer and must reference Article 138. Should their command not provide full relief to the service member, the service member may then submit a complaint to the officer exercising general court-martial convening authority (GCMCA) over the commanding officer. A formal complaint requires specific information that must be included. The complaint should also contain enough supporting relevant evidence for the officer to take action.

For example, let’s say that a service member was denied permissible TDY to find a house near their new duty station. In this situation, a service member submitting their informal letter may want to include a witness statement from their realtor discussing the housing situation and the active steps the member has taken to find a place to live.  Along with this evidence, they would also have to annotate the specific redress that they are requesting which must also be within the authority of the commander.

Even if the GCMCA rejects the service members complaint, they are required to explain what aspects of their complaint are lacking and any other avenues that can be used to appeal the wrongdoing.

Knowing Your Rights

The Article 138 process is well-grounded in the law so service members should not be concerned about retaliation from their command for exercising their rights under this provision. If a service member feels they have been retaliated against, they should immediately report the retaliation to their servicing Inspector General or legal representative.

As mentioned, Article 138 complaints are one of a service member’s best tools for combating their command’s wrongdoings. While useful, service members should consider seeking legal advice when submitting their complaint to ensure that their complaint is valid, supported by evidence, and that the requested redress is within the authority of the commander.

Stephen, a Senior Associate, practices military law in Tully Rinckey PLLC’s Austin office. He zealously represents clients through all stages of courts-martial and administrative separation hearings, as well as advising clients on issues involving pre-trial investigations, Article 15s, and other adverse actions. He can be reached at [email protected] or at (512) 225-2800.

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