Article 138 Complaints

Making an Article 138 Complaint
Sample Article 138 Complaint

An Article 138 very commonly begins with mistreatment by a chief, a division officer, etc., under the commanding officer's authority, and the initial request for redress may be against a member of the command, not just against the commanding officer. The complaint portion may therefore be for the commanding officer's failure to control a subordinate.

Relief can include an apology, a training or briefing about policy, etc. The Army and Navy provide sample formats for Article 138 complaints in their regulations, and a sample letters of complaint can also be found at the end of this page. Be sure to date all correspondence.

Under Article 138, any member of the armed forces who believes himself [or herself] wronged by his [or her] commanding officer may request redress. If such redress is refused, a complaint may be made and a superior officer must examine into the complaint.

An Article 138 complaint has two stages: a request for redress, and the actual complaint. When servicemembers believe they are wronged by their commanding officer, they must request a redress of that wrong before they can file an Article 138 complaint. If the servicemember is refused redress, they 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 [the complaint] is made. The general courtmartial convening authority will examine into the complaint and take proper measures for redressing the wrong complained of. In addition, the general court-martial convening authority must send to the Secretary of the Service a true statement of that complaint.

Article 138 complaints are often resolved against the complainant. However, counselors and attorneys report that many complaints that are denied are resolved informally. A compromise is offered to satisfy the complainant, while the official denial documents for the record that the complaint was without merit. Article 138 complaints have a bigger impact than many other complaint forms because of the requirement that the results be forwarded to the Secretary of the Service.

Service regulations further define some of the definitions of the article and provide procedures for acting on Article 138 complaints. Base legal offices have copies of the pertinent regulations and a military attorney may even be available to review a complaint for sufficiency before it is submitted.

The wrong may consist of either action or inaction that affects the complainant directly and personally and that, for example, is:

·  in violation of law or regulation;
·  beyond the legitimate authority of that commander;
·  arbitrary, capricious, or an abuse of discretion;
·  clearly or materially unfair.

An Article 138 complaint may only be made by an individual complainant against a single superior. Article 138 complaints can not be made for:

·  general policies of the Service or the DoD;
·  seeking disciplinary action against another;
·  decisions of the general court-martial convening authority involving an Article 138 complaint, except for failure to forward the complaint;
·  acts not ratified by the commanding officer named in the complaint;
·  acts that are not final;
·  situations where procedures exist that provide the individual notice of an action, a right to rebut, or a hearing and review by an authority superior to the officer originating the action. (This includes nonjudicial punishment and actions of a courtmartial or administrative board.)

A complaint made more than 90 days (or, in the Air Force, 180 days) after discovery of the alleged wrong may be denied solely because of untimely filing.

The Army is the only Service to instruct commanders not to restrict the submission of a complaint or retaliate against a soldier for submitting a complaint. However, in any of the Services, reprisals or mishandling of an Article 138 complaint can be the basis of other complaint procedures, or an additional Article 138 complaint.

Complaints may only be filed for actions of a complainant's commanding officer. However, a wrong may consist of inaction by the commanding officer when the officer was aware, or was made aware, of others' actions and did not stop or correct the actions. "Commanding officer" is defined as an officer authorized to impose nonjudicial punishment on the complainant, or a commissioned or warrant officer commanding an installation or organization to which the complainant is assigned or attached. The Navy provides for an avenue of complaint similar to Article 138 for offenders outside the member's command, discussed in Article 1150 of the Navy Regulations, which may be filed against a person who is superior in rank or command.

Making an Article 138 Complaint Back to Top

Address the initial request for redress of wrongs to the officer who has the authority to act on the situation. Describe the problem and specific actions that can be taken to resolve the problem, along with all available documentation, including statements from witnesses. The initial request must state that the complaint is made in accordance with Article 138 of the UCMJ

If the wrong is not redressed after the initial request, submit the formal complaint. (The Army gives officers 15 days to respond, the Navy gives 30 days, and the Air Force specifies no time-frame.) Restate the grievance and the officer's response to the initial request, or lack of response, as well as what actions must be taken to redress the grievance. Again, the complainant must state that the complaint is being submitted under Article 138, UCMJ, after failure to redress the grievance following the initial request.

Article 138 clearly states that complaints may be addressed to any superior commissioned officer. However, only the Air Force regulations allow the complainant to bypass their chain of command when filing a complaint. The Army requires that the complaint be filed with the complainants immediate superior commissioned officer. A complaint in the Navy or Marine Corps must be submitted via the chain of command, including the respondent. Before reaching the general court-martial convening authority, an intermediate officer to whom a complaint is forwarded may comment on the merits of the complaint, add pertinent evidentiary material to the file, and, if empowered to do so, grant redress. In the Air Force, the complainant may submit the claim directly, or through any superior commissioned officer to the general court-martial convening authority.

The general court-martial convening authority will look into the complaint, determine whether the complaint is appropriate under Article 138, and whether it has been made in a timely manner. The general court-martial convening authority may grant or deny redress.

A copy of the complaint and a record of actions taken is forwarded to the Secretary of the Service. The Article 138 process can serve as important documentation in later dealings with military authorities.

Sample Article 138 Complaint Back to Top

Initial Request

FROM: X. Y. Zee, SN, USN, 123-34-4566
TO: Commanding Officer, My Unit
SUBJ: Request for redress of grievances under Article 138

1. Two months ago I put in a chit to get leave to go home this week. I was told that it would be no problem, and that no one else had requested this date.

2. Last week I went to the Personnel Office to see if they were typing up my leave papers and was told that no one had authorized it. My Division Officer and my Department Head both then told me that they wanted me here for the inspection next week and would not let me go.

3. My parents have been notified that I'll be home and I have written to other people whom I haven't seen and told them I'd be there. I have not been home in a year and this is a hardship for which there is no excuse. My division does not rely on me alone to pass inspections, and I was told two months ago that the leave would be granted.

4. Please order the Personnel Office to prepare my leave papers for tomorrow as originally scheduled. Please instruct my Department Head and Division Officer not to prevent me from going home.

5. This request is being made in accordance with Article 138, UCMJ. I understand that if you do not comply with my request I may submit my complaint to the officer holding general court-martial convening authority over you, and that officer must perform an investigation and submit a report to the Secretary of the Service.

6. Thank you very much for your attention to this problem.

Very respectfully,
X. Y. Zee

Formal Complaint

FROM: X. Y. Zee, SN, USN, 123-34-4566
TO: COMCRUDLANT 4, Norfolk
VIA: Commanding Officer, My Unit
SUBJ: Request for redress of grievances
ENCL: (1) My request to Commanding Officer, My Unit, of [date]
REF: (a) Article 138, Uniform Code of Military Justice

1. Yesterday I requested that my commanding officer grant me the leave which I had requested and which had been approved over two months ago. I told him how I was being kept on board for no good reason and that it was a great hardship to disrupt plans which had been made so far in advance. See enclosure (1).

2. Instead of granting my request, my commanding officer cursed me and angrily told me that I cannot force him to do anything. He then told me that I will be written up for disrespect because I slouched while he was addressing me. My compartment mate, A. B. Cee, SA, USN, was there and can testify to this.

3. I hereby request that you correct my original problem by ordering that my leave be granted at once. Further, I request that you order my commanding officer to apologize for cursing me and that you order him to drop the charges against me, as they clearly stem from my attempts to enjoy the benefits of my rights under the UCMJ.

4. This complaint is submitted in accordance with reference (a). I understand that the law requires you to order a complete investigation into this matter and that you must send a true copy of my complaint along with the results of your investigation to the Secretary of the Navy. I request that I be permitted to testify before the investigating officer.

5. Thank you very much for your help in this distressing situation.

Very respectfully,
X. Y. Zee
cc: Member of Congress; Advance Copy: Secretary of the Navy

This fact sheet is based on information from www.girights.org, the website of CCCO, 405 14th Street, Suite #205, Oakland, CA 94612.