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Article 138 Complaints

Grievances: Article 138 Complaints

Under Article 138 of the Uniform Code of Military Justice, any member of the armed forces who believes himself or herself wronged by his or her commanding officer may request redress. By requesting redress the wronged member of the military is asking that the “problem” be addressed and fixed. Army Regulations [1] define 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-

(1) In violation of law or regulation;
(2) Beyond the legitimate authority of that commanding officer;
(3) Arbitrary, capricious, or an abuse of discretion; or
(4) Materially unfair.

If the problem is not addressed and fixed by the commanding officer, a formal complaint (Article 138) can be made to a superior officer (higher in rank to the officer who is responsible for the problem). This will trigger an investigation into the problem by the court-martial convening authority over the commanding officer against which you brought the initial complaint. The investigator should, “examine the complaint and take proper measures for redressing the wrong complained of” [2] and should report their findings to the Secretary of the Army (or Navy, Air Force etc). Any retribution or reprisals for filing an Article 138 can be the basis for additional complaints.

Before you file an Article 138 Complaint

The actual filing of an Article 138 complaint will go on the officer’s official military record and thus the actual filing is not something to be taken lightly. Even before you request redress, which always comes before you file an Article 138 complaint, consider orally conveying to your chain of command that you are contemplating submitting an appeal for redress in pursuit of an Article 138 complaint.  One option for this is to use the open door policy to meet with your commanding officer.  In a polite and formal tone you could suggest something similar to the following:

Sir/ma’am, I have been trying to resolve __________ and I know I’m being harmed by __________, and I am thinking of filing an Article 138. I know this is really serious, so I just wanted to speak with you first and see if we can’t work something out.

Before you file a request for redress or an Article 138, we suggest that you call the GI Rights Hotline at 877-447-4487.

Making an Article 138 Complaint

An Article 138 complaint has two stages:

1. A request for redress in the form of a letter.

Address the initial request for redress of wrongs to the lowest ranking officer in your chain of command who is responsible for the problem; include these four items:

(1) State that the letter is pursuant to Article 138 of the UCMJ.
(2) Describe the problem, along with all available documentation, including statements from witnesses, and if appropriate, reference to military regulations which your commanding officer is violating.
(3) Give specific actions that can be taken to resolve the problem.
(4) Give a reasonable deadline by which the problem must be solved.

Remember that this letter can be seen as a threat. To make it seem less like a threat and more like a win-win opportunity, consider using a  tone that politely conveys, “I want to give you the opportunity to do the right thing so I can get this fixed now without having to file a formal complaint. 

2. The formal filing of the Article 138.

If the wrong is not addressed and fixed after the deadline in the initial request, you can submit a formal complaint. The law states that you can submit the complaint to “any superior commissioned officer.” Generally your complaint would go up your chain of command to the officer exercising general court-martial jurisdiction over the officer from whom you initially requested redress. This should be submitted through your chain of command beginning with your immediate supervising (superior) officer.

(1) State “I am officially filing an Article 138 Complaint against _______ [the person to whom you wrote the initial letter] because of ________ [restate the grievance].”
(2) State the officer’s response to the initial letter, or lack of response.
(3) State what actions must be taken to redress the grievance.
Be sure to include your initial letter requesting redress and any supporting documentation.

Format for an Article 138 Complaint

FORMAT FOR REQUEST FOR REDRESS (filed before the filing of an Article 138):

FROM: Name, Rank, Social Security Number
TO: Commanding Officer, Unit
SUBJECT: Request for Redress of Grievances Under Article 138.

(1) State that your letter is written pursuant to Article 138.
(2) State the grievance/problem in detail with statements from witnesses (attach evidence if appropriate) and reference appropriate military regulation.
(3) State the solution to your grievance/problem in detail.
(4) Give a reasonable timeframe for this issue to be resolved.

Reminders: Be polite and avoid making any overt threats. Thank your chain of command for their time. Make multiple copies.

FORMAT FOR FILING FORMAL ARTICLE 138:
(To be submitted to your immediate supervising (superior) officer.) (For Navy or Marines, see Footnote [4])

FROM: Name, Rank, Social Security Number
TO: Court-Martial Convening Authority over _______________.
VIA: Commanding Officer, Unit (your immediate supervising officer)
SUBJECT: Article 138 Complaint
ENCL: Initial request for redress to Commanding Officer and Collected Evidence
REF: Article 138 of UCMJ
CC: Member of Congress (send the formal complaint to your member of Congress)
CC: Secretary of the Service
CC: Secretary of Defense

(1) State that you are officially filing an Art. 138 complaint against_____________.
(2) Address the unresponsiveness of the chain of command to you initial request for redress.
(3) Restate your grievance/problem and request that it be addressed and an order be given from higher for redress.
(4) Address any abuse you have faced since filing your initial request for redress in detail with statements from witnesses.
(5) State, “I understand that UCMJ requires you to order a complete investigation into this matter and that you must send a copy of my complaint along with the results of your investigation to the Secretary of the _____________ (Army, Navy, …). I request that I be permitted to speak before the investigating officer as appointed by the General Court-Martial Convening Authority (GCMCA).

Reminders: Be polite and formal. Make multiple copies to keep and to give to your immediate supervising (superior) officer. Include a copy of your initial letter requesting redress.

ART. 138 of the UCMJ: Complaints of Wrongs

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 foreword the complaint to the office exercising 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 thereon.

Army:

AR 27-10, Military Justice (3 October 2011), Chapter 19

Air Force:

AFI 51-904, Complaints of Wrongs Under Article 138, Uniform Code of Military Justice (30 Jun 1994) [3] (para. 2-7) defines a “wrong” as:

A discretionary act or omission by a commander, that adversely affects the member 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 unfair (for example—selective application of administrative standards/action, either in the type of standard/action applied or in the severity of the penalty imposed, which results in a clearly unfair application of the administrative standard/action).

Navy and Marines:

JAGMAN (JAGINST 5800.7E), Manual of the Judge Advocate General (20 JUN 07), Chapter 3 defines wrongs as:

“Any act, omission, decision or order, except those excluded by subsection 0304, taken, caused, or ratified by a “commanding officer,” under color of that officer’s military authority that:

(1) results in personal detriment, harm, or injury to a military subordinate;
(2) is without substantial basis, unauthorized, arbitrary and capricious, unjust, or discriminatory;
(3) is properly capable of redress in command channels.”

(Article 1150 of Navy Regulations lays out similar complaint procedures for Navy and Marine Personnel to supplement Art. 138.  This article allows military members to seek redress from any superior other than their commanding officer, including superiors not in their chain of command. Article 1150 complaints are submitted via the commanding officer of the complainant.

Footnotes

[1] AR 27-10, Military Justice (1.7 MB), paragraph 20-4e
[2] Article 138, UCMJ
[3] AFI 51-904, Complaints of Wrongs Under Article 138, Uniform Code of Military Justice (203 KB)
[4] Those in the Navy or Marines must use the format specified by:
JAGMAN (JAGINST 5800.7E), Manual of the Judge Advocate General (22.6 MB) (below)

0306 PROCEDURE
...
c. ... This form must be completed in its entirety, unless a particular subparagraph, such as that providing for an explanation for untimely submission, does not apply.

Date

From: (Rank, Name, SSN/Designator)

To: (GCMCA over respondent at the time of the alleged wrong)

Via: (1) (complainant’s current commanding officer, if needed)

(2) (Respondent)

(3) (other intermediate superiors in chain-of-command prior to GCMCA)

Subj: COMPLAINT OF WRONGS UNDER (choose ARTICLE 138, UCMJ or 1150, U. S. NAVY REGULATIONS)

Ref: (a) (choose Article 138, UCMJ or Article 1150, U.S. Navy Regulations (1990) ) (b) JAGMAN, Chapter III

Encl: (1) (list individually all documents enclosed with the complaint to support the complaint, including written request for redress, response to request for redress)

1. This complaint of wrongs, under reference (a), is submitted in compliance with reference (b).

2. COMPLAINANT: (person making the complaint) a. Rank, name, SS#, designator: b. Current command: c. Command at time of alleged wrong: d. EAOS/EAS/PCS/Separation/Retirement Date: (list date (s) as appropriate) e. Permanent home address: (place where correspondence should be forwarded upon separation from active duty)

3. RESPONDENT:(person against whom complaint is made) a. Rank and name: b. Organization: (title/position and current command, and if different, provide same information for respondent at the time of the alleged wrong)

4. COMPLAINT: (explain what happened and how it adversely affected you personally) a. Date wrong discovered: b. Date written request for redress was submitted: c. Date answer to request for redress was received: d. Number of days between wrong and submission of complaint: (difference between date in block 4a above and date this form is submitted, excluding the period respondent considered the written request for redress, which can be determined from blocks 4b and 4c above; if complaint is submitted more than 90 days after discovery of the wrong, the delay must be explained in block 4e below) e. Explanation of delay in submission: f. Specific nature of wrong: (include date and place of wrong)

5. RELIEF REQUESTED: (relief must be personal in nature and directly connected to the wrong alleged in block f above; it may not include, for example, a demand for public apology or initiation of action against another) a. (list each relief requested)

6. I CERTIFY THE ABOVE INFORMTION IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE, AN THIS COMPLAINT IS SUBMITTED PER THE GUIDELINES AND PROCEDURAL REQUIREMENTS IN CHAPTER III, MANUAL OF THE JUGE ADVOCATE GENERAL. SIGNATURE OF COMPLAINANT: ___________________________ Date: ___________________ WITNESS: ___________________________ Date: ___________________ 

 

The above information was prepared by the Center on Conscience and War (800-379-2679).

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