A service member who believes he or she has been wronged by a commanding officer has a legal right to complain about the commander's conduct and request that the offending conduct cease or be corrected. Depending on the nature of the complaint and the availability of other remedies, a service member may file a complaint under Article 138 of the Uniform Code of Military Justice.
Before doing so, a service member should receive the best legal advice in pursuing this avenue of redress. David Sheldon stands ready to represent service members who are prepared to file a complaint under Article 138.
Article 138 of the UCMJ allows a service member to make a request for the redress of wrongs (file a complaint) to his or her commanding officer. There are two stages to the complaint process. First, the service member makes an informal request for corrective action in writing to the offending commanding officer. The commanding officer will respond, usually in writing, to this request. If the request is denied, the service member may then submit a formal complaint in writing to any commissioned officer, who then must ensure that the complaint is given to an officer with General Court-Martial Convening Authority. This will usually be a General or Flag officer.
That officer will then make a determination of the complaint or order an investigation into the complaint. In either case, the complaint must be forwarded for review to the Secretary of the military department concerned.
An Article 138 complaint can be a very powerful remedy for a service member. A service member considering making an Article 138 complaint must exercise care to ensure that Article 138 is the appropriate procedure to use, that more appropriate avenues of redress are not available, that his or her complaint, is valid, and that it is, where possible, supported by evidence. A service member who makes an Article 138 complaint also should be aware of the possibility of retaliation and harassment by the command.