Article 138, UCMJ: A Servicemember’s Guide to Redress of Grievances

The Uniform Code of Military Justice (UCMJ) provides servicemembers with various avenues to seek redress when they believe they have been wronged by their commanding officers. Article 138 stands as one of the most powerful tools available to military personnel who feel they have been treated unjustly. This article explores the purpose, procedures, and practical applications of Article 138 across the different military branches.

What is Article 138?

Article 138 of the UCMJ states that any servicemember who believes they have been wronged by their commanding officer may request redress. If such redress is refused, the servicemember may file a formal complaint that will be forwarded up the chain of command, ultimately reaching the officer exercising general court-martial jurisdiction (GCMCA).

The purpose of Article 138 is to provide servicemembers with a formal mechanism to address grievances that cannot be resolved through normal channels. It ensures that those in positions of authority are held accountable for their actions and decisions.

Valid Grounds for Article 138 Complaints

Not all grievances qualify for an Article 138 complaint. Valid grounds typically include:

1. Denial of leave when properly requested and justified
2. Improper punishment outside the UCMJ framework
3. Discriminatory treatment based on race, religion, gender, or other protected categories
4. Withholding of entitlements or benefits without proper justification
5. Improper denial of promotion when all requirements have been met
6. Arbitrary or capricious decisions that negatively impact a servicemember’s career

Examples of Valid Article 138 Complaints

Example 1: Denial of Leave

A soldier submits a leave request with appropriate justification during a non-critical period. The commander denies the request without explanation despite the unit having sufficient personnel to maintain operations. After attempting to resolve the issue informally, the soldier could file an Article 138 complaint.

Example 2: Improper Punishment

A Marine’s commanding officer orders them to perform additional duties as punishment for minor infractions without following proper non-judicial punishment procedures under Article 15. This circumvention of established disciplinary procedures could form the basis of an Article 138 complaint.

Example 3: Discriminatory Treatment

An Air Force officer consistently assigns a female airman to administrative duties while male airmen with similar qualifications are given operational assignments that enhance career advancement. Despite bringing this to the commander’s attention, the pattern continues, potentially warranting an Article 138 complaint.

Service-Specific Procedures

While the fundamental process remains consistent across branches, each service has implemented specific procedures for handling Article 138 complaints.

Army Procedures

Army Regulation 27-10, Chapter 20, outlines the Army’s procedures for Article 138 complaints:

1. The soldier must first seek redress directly from their commanding officer in writing.
2. If the commanding officer denies redress within 15 days (or fails to respond), the soldier may file a formal complaint.
3. The complaint must be submitted within 90 days of the alleged wrong.
4. The complaint is forwarded through the chain of command to the officer exercising general court-martial jurisdiction.
5. The GCMCA must investigate the complaint and take appropriate action within 60 days.
6. A copy of the final action is forwarded to the Department of the Army.

Air Force Procedures

Air Force Instruction 51-904 governs Article 138 complaints for Airmen:

1. The Airman must first request redress from their commander in writing.
2. If redress is denied or not provided within 30 days, the Airman may file a formal complaint.
3. The complaint must be submitted within 90 days of the alleged wrong or denial of redress.
4. The complaint is forwarded through the chain of command to the GCMCA.
5. The Staff Judge Advocate (SJA) typically conducts the inquiry and prepares recommendations.
6. The GCMCA makes the final decision and notifies the Airman of the outcome.
7. Records of the complaint are maintained by the SJA and forwarded to the Secretary of the Air Force.

Marine Corps Procedures

Marine Corps Order 1700.9 outlines the procedures for Marines:

1. The Marine must first request redress from their commanding officer in writing.
2. If redress is denied or not provided within 5 working days, the Marine may file a formal complaint.
3. The complaint must be submitted within 90 days of the alleged wrong.
4. The complaint is forwarded via the chain of command to the GCMCA.
5. The GCMCA must investigate and take appropriate action, typically within 30 days.
6. The final action is reported to the Secretary of the Navy.

Navy Procedures: Article 138 vs. 1150 Complaints

The Navy has two distinct processes that are often confused: the Article 1150 complaint (Navy Regulation) and the Article 138 complaint (UCMJ).

Article 1150 Complaint

Article 1150 of Navy Regulations allows sailors to file complaints against any superior (not just commanding officers) for:

1. Violations of law, regulation, or custom of service
2. Treatment considered oppressive, abusive, or improper
3. Behavior unbecoming an officer

The process for an 1150 complaint:

1. The complaint is submitted in writing to the superior’s commanding officer.
2. The commanding officer investigates and decides on appropriate action.
3. If the sailor is not satisfied, they can appeal to higher authority.

Navy Article 138 Complaint

The Article 138 process in the Navy, as outlined in JAGMAN (Judge Advocate General Manual) section 0302:

1. The sailor must first request redress directly from their commanding officer in writing.
2. If redress is denied or not provided within 15 days, the sailor may file a formal complaint.
3. The complaint must be submitted within 90 days of the alleged wrong.
4. The complaint is forwarded through the chain of command to the GCMCA.
5. The GCMCA must investigate and take appropriate action within 60 days.
6. The final decision is reported to the Secretary of the Navy.

Key Differences:

• Article 1150 complaints can be filed against any superior, while Article 138 complaints are specifically against commanding officers.
• Article 1150 complaints stay within the immediate command structure, while Article 138 complaints go to the GCMCA level.
• Article 138 complaints have more formal requirements and timelines.

Practical Considerations for Servicemembers

Before filing an Article 138 complaint, servicemembers should:

1. Attempt informal resolution: Utilize the chain of command and other available resources like the Inspector General’s office.
2. Document everything: Keep copies of all correspondence, requests, and responses.
3. Be specific: Clearly identify the wrong committed and the redress sought.
4. Consult with legal counsel: Military legal assistance attorneys can provide guidance on the process.
5. Follow timelines: Be aware of the specific deadlines for your branch of service.
6. Maintain professionalism: Even when filing a complaint, maintain military bearing and professionalism.

Conclusion

Article 138 provides servicemembers with a powerful tool to address grievances when other avenues have been exhausted. While the process can be intimidating, it serves an important purpose in maintaining good order and discipline by ensuring commanders act within the bounds of their authority.

Understanding the proper procedures and requirements for your specific branch of service is crucial to successfully navigating the Article 138 complaint process. When used appropriately, Article 138 helps maintain the balance between command authority and servicemember rights, strengthening the overall military justice system.

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