Sample Chapters
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Chapter 6: Grievances & Filing Complaints
Article 138
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."1
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 court-martial 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."2
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.3
The wrong "may consist of either action or inaction" that "affects the complainant directly and personally"4 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.5
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 court-martial or administrative board.)6
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.7
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."8 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,9 or a commissioned or warrant officer commanding an installation or organization to which the complainant is assigned or attached.10 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."11
Making an Article 138 Complaint
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.12) 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 "complainant's immediate superior commissioned officer."13 A complaint in the Navy or Marine Corps must be submitted "via the chain of command, including the respondent."14 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."15 In the Air Force, the complainant may "submit the claim directly, or through any superior commissioned officer" to the general court-martial convening authority.16
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.