UCMJ Article 138: Complaints of Wrongs

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Military life is demanding, and all uniformed service members are expected to meet higher standards of behavior than civilians in most capacities. However, it can sometimes feel as though service members have little to no room for recourse when they feel as though they have been wronged in some way by the military. Article 138 of the UCMJ pertains to Complaints of Wrongs, and Article 138 includes proceedings that are some of US servicemembers’ most powerful means of rectifying adverse conditions they face while in service.

If you believe you have experienced any form of wrongdoing from your commanding officer or other elements of the US Armed Forces, it’s vital to understand Article 138 of the UCMJ, the protections and legal options this article affords you in certain situations, and what you can expect if you need to file a Complaint of Wrong under Article 138.

“He is clearly the best trial or defense counsel that I have observed in the courtroom”Senior Defense Counsel, Marine Corps

Representing Military Clients for Article 138 Proceedings

Attorney Aaron Meyer is a former US Marine who puts his military background and keen legal skills to use for every client represented by Aaron Meyer Law. Our firm is dedicated to providing comprehensive and detail-oriented legal counsel to US service members, including those accused of crimes and those facing adverse circumstances while serving honorably.

If you need legal representation of any kind while serving in the US military, Attorney Aaron Meyer can help. The Aaron Meyer Law team can provide a much more robust level of legal counsel than you could expect from a detailed military lawyer. While most military lawyers are competent and client-focused, they can rarely offer the same level of individualized attention your case would receive from a private firm like Aaron Meyer Law.

How to Use Article 138

Many US service members are not only unaware of the breadth and depth of the protections afforded to them through Article 138, but many of them are also unaware of Article 138’s existence entirely. The UCMJ does not stop with the Punitive Articles, and Article 138 is one of the most powerful tools any US service member can use to address wrongs they have experienced during the course of their service. In many cases, the mere mention of an Article 138 filing is enough to capture the attention of the service member’s commanding officers and compel them to determine the cause of the servicemember’s alleged wrong.

It’s important to understand that a complaint filed under Article 138 does not necessarily need to pertain to an illegal act or breach of the UCMJ. Servicemembers file Article 138 complaints against commanding officers, but the wrong in question may not be the direct actions of the commanding officer but rather their inability to control or properly train their subordinates. Typically, the basis of an Article 138 complaint is a commanding officer’s “discretionary act or omission.” Each branch of the military has its own definitions for “wrong” under Article 138 as well:

  • The Army defines a “wrong” under Article 138 as a discretionary act or omission resulting in harm that is in violation of a law or military regulation, beyond the legitimate authority of the officer in question, arbitrary, capricious, or discretionarily abusive, or materially unfair.
  • The Navy and Marine Corps define “wrongs” as discretionary actions or omissions resulting in personal harm, injury, or other detriment to a subordinate, an act or omission without substantial basis, or one that is arbitrary, unauthorized, capricious, discriminatory, or unjust, or an act or omission properly capable of redress through command channels.
  • The Air Force defines a “wrong” as a discretionary act or omission that is in violation of a military law or regulation, an act or omission beyond the commanding officer’s legitimate authority, an arbitrary, abusive, or capricious act or omission, or an act or omission that is clearly unfair to the complainant.

The language contained in each branch of service’s definitions of “wrongs” applicable under Article 138 are intentionally open to interpretation to provide the greatest possible level of legal protection to servicemembers adversely affected by discretionary acts or omissions committed by their commanding officers.

How to File an Article 138 Complaint

There are two main phases to any Article 138 complaint. First, the complainant must file a notice in writing to the commanding officer in question mentioning Article 138. If the commanding officer fails to provide the complainant with full relief from their alleged issue, the complainant may then take their Article 138 complaint to the General Court Martial Convening Authority (GCMCA) with jurisdiction over the commanding officer. Generally, the complainant has 90 days in which to serve their commanding officer with their letter following the date of the discretionary act or omission in question, but the Air Force provides 180 days. If the command fails to address the letter to the complainant’s satisfaction, they have another 90 days (not including the time the letter was in their commanding officer’s possession) to file a complaint with the GCMCA.

Generally, the branches of the military have similar processes for handling Article 138 complaints and strive to resolve all complaints filed in good faith at the lowest possible level. This preserves military resources and generally provides the complainant with the swiftest possible results.

In the event that the commanding officer does not respond appropriately to a complainant’s letter alleging a wrong under Article 138 and the case proceeds to the relevant GCMCA for review, the GCMCA generally approaches these cases under the assumption that the commanding officer acted appropriately. This is similar to the presumption of innocence afforded to all accused under the due process laws of the US.

How an Military Defense Attorney Can Help

As a member of the US military, you are expected to conduct yourself in accordance with the UCMJ and have the right to expect the same from your superiors. If you believe your commanding officer has committed an unjust discretionary act against you or that they have failed in their leadership and ability to train and control their subordinates, Article 138 of the UCMJ is your best chance of having the situation rectified swiftly and effectively.

Do not feel intimidated about initiating an Article 138 complaint if you genuinely feel that you have been harmed by your commanding officer’s discretionary act or omission. The team at Aaron Meyer Law can help you draft a comprehensive and compelling letter that hopefully secures an acceptable response from your commanding officer. Contact us today to learn more about how we can help you with your Article 138 Complaint.

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