Navigating a Complaint of Wrongs under Article 138, UCMJ: A Comprehensive Guide

Introduction

Military service members, committed to providing honorable service, sometimes find themselves facing situations where their commanding officer violated their rights. In such instances, understanding and utilizing the formal process outlined in Article 138, UCMJ — known as “complaints of wrongs” — becomes crucial. A complaint of wrongs is one of the most powerful tools in military justice. This comprehensive guide aims to empower military personnel with the knowledge and steps necessary to navigate this process effectively.

Content

Representing Service Members with Article 138 Complaints of Wrong

Attorney Kevin Courtney and the team at Kevin Courtney Law help clients draft complaints of wrong under Article 138. As a former Marine Corps Judge Advocate (JAG), Kevin uses his experience to protect the reputations and careers of service members when commanding officers violate their rights.

If you need legal assistance for an issue in the military, Attorney Kevin Courtney can help. The Team at Kevin Courtney Law provide individualized, detailed, and results-driven legal representation for all of your military justice needs. It’s everything you would expect from a private military defense firm. Contact us today by calling 760-385-3889.

What Constitutes a Complaint of Wrongs under Article 138 UCMJ

A complaint of wrongs under Article 138, UCMJ is a formal mechanism allowing service members to address a variety of issues within the military context. This could range from abuse of authority to discrimination, retaliation, and more. It serves as a safeguard against unfair treatment and ensures the protection of individual rights. It starts with a request for redress and an opportunity for the commanding officer to fix the situation informally.

Marine Corps and Navy

The Marine Corps and Navy define a wrong as “any act, omission, decision or order … taken, caused, or ratified by a respondent, pursuant to naval authority, that:

  1. Results in personal detriment, harm, or injury to a subordinate Service member; and
  2. Is a violation of law or regulation; unauthorized; arbitrary, capricious, or an abuse of discretion; or unjust.

Army

The Army defines 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.
  4. Materially unfair

Air Force

The US Air Force defines a wrong as “A discretionary act or omission by a commander that adversely affects the petitioner personally and is:

  1. in violation of law or regulation;
  2. beyond the legitimate authority of that commander;
  3. arbitrary and capricious, or an abuse of authority; or
  4. clearly unfair or unjust.”

Coast Guard

The US Coast Guard defines a wrong as “any act, omission, decision or order, except those excluded by Subsection 25.B.2., 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; and
  2. is without statutory or regulatory basis, unauthorized, an abuse of discretion, arbitrary and capricious, unjust or discriminatory.

Know Your Legal Rights Under Article 138, UCMJ

Safeguards and Protections

Article 138, UCMJ, provides a robust framework of rights and protections for military members. These safeguards are designed to maintain fairness and justice within the military structure. By invoking Article 138 to draft complaints of wrongs, service members can ensure their rights are upheld, and due process is followed in addressing grievances.

Upholding Due Process

The essence of due process is central to the complaints of wrongs procedure. This ensures that individuals have a fair opportunity to present their case, and decisions are made impartially. Understanding these rights is pivotal for those navigating the intricacies of the military justice system.

The Process of Filing Complaints of Wrong

Request for Redress / Informal Complaint

Each service has its own regulation regarding complaints of wrongs. They all start with a request for redress, informal complaint, or a written notice to the command. All three terms are a letter to the commanding officer who committed the wrong, requesting it be fixed or redressed. In the request for redress, the service member must reference Article 138, UCMJ.

Service Branch Legal Regulations for Complaints of Wrongs under Article 138 UCMJ

Each service implements the process for submitting complaints of wrongs under Article 138 in service regulations. The service regulations are:

Overview of the Formal Complaint Process

Filing a complaint of wrongs involves a systematic approach outlined in Article 138, UCMJ and service regulations. After the command denies the request for redress or informal complaint, the formal process begins. It begins with drafting a written complaint, detailing the nature of the grievance and the specific actions or circumstances leading to the complaint. The service member will then submit the complaint of wrong to the appropriate authority within the chain of command.

Step-by-Step Guide

  1. Document the Grievance: Clearly outline the details of the grievance in a concise and factual manner. Utilize the suggested format found in service instructions.
  2. Identify the Correct Authority: Determine the proper officer to address the complaint within the chain of command or legal hierarchy.
  3. Prepare the Written Complaint: Follow the guidelines in the applicable service instruction and Article 138 for structuring complaint of wrong.
  4. Submission: Submit the completed complaint of wrong to the designated authority, either directly or through the appropriate channels. Often the authority will be the General Court Martial Convening Authority (GCMCA).

Understanding the intricacies of this process is crucial to ensuring the effective and timely resolution of the complaint. As procedural deficiencies can render a complaint ineffective, it is advisable to speak with an attorney about this process. Call our office at 760-385-3889 for a free consultation or schedule a call on our online calendar.

Potential Issues and Considerations Before Filing Complaints of Wrongs

Addressing Concerns about Retaliation

A common concern when filing a complaint of wrongs is the fear of retaliation. But Article 138, UCMJ, provides protections against such reprisals. Understanding these safeguards and seeking legal advice can help encourage individuals to come forward without fear of negative consequences. You deserve to right a wrong and hold your commanding officer accountable.

Understanding the Timeline for Resolution

The military justice system is designed for efficiency, but the timeline for resolutions can vary. Service members should be aware of the general timeframe involved in addressing a complaint. Generally, the service member must submit a request for redress as soon as the wrong occurred. The commanding officer will have 30 days to consider and respond to the request for redress. These 30 days are not considered against a complainant’s timeline under Article 138, UCMJ.

Once the commanding officer denies the request for redress, the service member must file the complaint of wrong within 90 days from discovering the wrong. So to calculate the timeline, if the commander took 21 days to respond to the request for redress, the deadline to submit a complaint of wrongs is 90 day + 21 days. As a late submission is a valid reason for a commanding officer to deny an Article 138 complaint, it is imperative to work with an attorney to ensure your complaint is submitted in its proper format and on time.

Exploring Alternatives

In some cases, informal resolution methods may be explored before initiating a formal complaint. Open communication within the chain of command or seeking advice from a trusted mentor can sometimes lead to resolutions without invoking Article 138. But although a complaint of wrong is a serious tool, service members should not be afraid to use it when warranted.

The Importance of Legal Advice

Before initiating a formal complaint, seeking legal advice is advisable. Knowledgeable legal counsel can provide guidance on the specific nuances of the case, ensuring that the complaint is structured appropriately and stands the best chance of achieving a positive resolution.

Service members can seek legal help from their on-base defense service organization (DSO) or area defense counsel. However, the DSO is unlikely to detail a uniformed judge advocate to your case during the course of the Article 138 complaint. But, military members can consult and hire a civilian military defense attorney to stand up for their rights.

Conclusion

In conclusion, understanding and utilizing a complaint of wrongs under Article 138, UCMJ is an essential aspect of safeguarding the rights and well-being of military personnel. This comprehensive guide has walked through the key components of the process, from defining what constitutes a complaint of wrongs to the practical steps involved in filing a 138 complaint and addressing potential challenges.

Service members contribute to upholding the integrity of the military justice system by addressing grievances in a practice manner. Article 138, UCMJ, serves as a powerful tool to ensure fairness, justice, and accountability within the military, reinforcing the principles that form the bedrock of military service. As military members navigate their careers, the knowledge and understanding of this process become invaluable in fostering a culture of respect and accountability.

military court martial attorney Kevin Courtney Marine Corps Veteran

Contact Kevin Courtney Law for a free consultation regarding your Article 138 Complaint of Wrong. We focus our practice on protecting service members’ reputations, careers, and freedoms, and have successfully used Article 138 to do so. Call us today at 760-385-3889.