The Article 138 Process is often misunderstood and is seldom used. It is a powerful tool to guarantee a Soldier’s rights are not violated, and that he/she is treated correctly under the Uniform Code of Military Justice.
In today’s post, we will explain the Article 138 Process and what every Soldier should know. Please understand that we are not attorneys, and it is always wise to consult with a qualified professional before deciding to file an Article 138.
What is an Article 138?
Simply put, an Article 138 is a complaint process. If a service member feels they have been mistreated or wronged by their commanding officer, the Soldier has the right to file an Article 138 complaint. By doing so, the proper authorities which would be the Court Martial Convening Authority will view and take proper action to resolve the issue.
The Article 138 complaint process needs to be thought out completely before a Soldier decides to take that route. In some extreme cases, Soldiers have received backlash in the forms of harassment or revenge because they filed an Article 138. We will attempt to explain how a Soldier can protect themselves against these measures if their only recourse is the Article 138.
Items not covered by an Article 138
Before proceeding into the items that an Article 138 will not cover, I must reiterate that it is wise to consult with a qualified attorney. These are just a few examples, and every case is different. An attorney can explain the Soldier and the commanding officer’s rights and responsibilities much better than I can.
Situations in which a hearing is underway, or has been held unless it involves retaliation because of said hearing.
Acts in which the commanding officer played no part in initiating or ratifying.
Complaints against another Soldier or officer.
Disciplinary actions against the Soldier that fall under the UCMJ.
Complaints about the resolvement of a prior Article 138 unless it involves retaliation or harassment.
These are just a few examples. As I stated earlier, speak with a lawyer who is familiar with military law.
The Proper Filing Method
There is a proper system in filing an Article 138 complaint. In many cases, the commander has no idea that a Soldier feels “wronged,” and they should always have the opportunity to rectify the problem first.
It is highly recommended that a Soldier first use the open door policy with their commanding officer. In doing so, all communication should be noted and copies made. Here is an example of contacting the commanding officer before even filing an Article 138.
Sir or ma’am,
I have found a serious issue with ________, and it is effecting the job I do. I know that you have an open door policy, and I wanted to call your attention to this problem before I would have to move into an Article 138 recourse. I would appreciate if you could confront the problem of _____________ and see if there is a way we can work it out. Thank you.
If after you have attempted this action and there is no resolution, the Article 138 should be utilized. There are 2 steps to the process.
This is where you formally write the commanding officer and explain you are filing an Article 138. In doing so you will:
Explain in detail the nature of the problem.
Explain what you want done to resolve the problem.
Explain when you want the problem resolved.
Provide any evidence you have of the problem.
Usually, a commanding officer will immediately address the problem. An Article 138 can be quite damaging to an officer’s career, but if the commanding officer refuses to honor your request, you will then need to move to step 2. It is important that you keep copies and records of all you sent them, and any conversations.
Do understand that a commanding officer or NCO may attempt to discourage a Soldier from carrying through with an Article 138. In some cases this may be in the form of intimidation or even threats. If this is happening, a great source is the GI Rights Hotline.
Now the Soldier creates another formal letter which simply states:
I am officially filing an Article 138 against ____________ (name of commanding officer). This is because of _________________________ (explain the complete grievance). _______________ (commanding officer) would not rectify the problem which I believe should be __________________ (what the soldier feels should be done).
Copies of what was sent to the commanding officer, along with all documents that support the complaint should also be sent. The Soldier should make copies of these items.
The Soldier gives this information to their immediate superior commissioned officer. They are then obligated to deliver the Article 138 to the officer who exercises general court-martial jurisdiction.
The issue will be examined and steps will be taken to provide a solution that redresses the Soldier’s complaint. It will be sent back to the commanding officer who will either fix the issue, or make a claim that he/she does not have the ability to do so. If that is the case, he/she will forward the material to the Department of the Army Headquarters and it will be reviewed by the Judge Advocate General. They may either ask for more information, or make a ruling.
If at any time a Soldier wants to withdraw an Article 138, they can do so.
I just cannot reiterate it enough…it is best to seek legal counsel before following the Article 138 route. It should be used as a last resort. It is a very serious action, and it can greatly effect an officer’s career, but if your job, mental, or emotional stability, or peace is being threatened, the Article 138 is a tool that is best used.
No retaliation is tolerated when a Soldier files an Article 138, but in some cases, it does happen. The best possible way to handle retaliation is to immediately consult your attorney and/or contact the Department of Army IG office.
The Article 138 complaint process can be stressful and confusing. Do you have any questions? Do you have any comments to offer? Have you been involved in an Article 138 process? We would like to hear from you. Please leave a comment below. If you have any more tips to offer on the process, we would also like to hear them. Thank you.