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Can a legal action be brought against a commanding officer?

Does a service member have legal recourse when he or she believes that a commanding officer has acted improperly or illegally? As an attorney that focuses on military law, I know that Article 138 of the Uniform Code of Military Justice provides some protection. In some situations, a service member may be able to file a complaint against the officer.

Of course, there may be consequences to such a filing, especially if filed without careful planning. As a preliminary matter, there is a prerequisite to an Article 138 filing. In that stage, the service member should make an informal written request to the officer for corrective action. The officer generally responds in writing to that request. The formal complaint under Article 138 is generally filed only if the informal request was denied.

Could there be a chilling or adverse social effect to an Article 138 filing? For whatever reason, a recent article suggests that military women are still not being treated equally, at least when it comes to sexual assault. Based on the Pentagon’s own data, over 20,000 service members were sexually assaulted last year. The data does not differentiate whether the assault was by a peer or a commanding officer. Yet superiors and commanders may also need to do more.

Specifically, of those who did come forward to report the misconduct, over 60 percent claimed they experienced retaliation on a social, professional and/or administrative level. In a majority of situations, the adverse response came from commanders or superiors. Not surprisingly, many of the victims who experienced sexual assault never came forward. This is where a consultation with a military lawyer might provide needed perspective, and perhaps the insulation to hold those at fault accountable without fear of retaliation. 

Source: Newton Daily News, “Still no justice for military women,” Martha Burk, Aug. 14, 2015

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