When the Commander Errs: The Article 138 Complaint
Last month we talked about the disparity between the integrity expected of governmental figures and bureaucrats and the integrity demanded of the uniformed service on pain of punitive UCMJ action. This month I’d like to draw the curtain back on a little used and even less-understood right of the servicemember under the UCMJ–the Article 138 complaint.
At the birth of our nation we adopted more or less wholesale the British Articles of War and the 1689 Mutiny Act–enactments that traced their lineage back to the late 12th century. In various iterations they maintained something unique to Anglo-Saxon military jurisprudence–the complaint of wrong against a commander. The “original” comprehensive enactment of U.S. Articles of War of 1806 contained the following:
Article 35.
If any inferior officer or soldier shall think himself wronged by his captain, or other officer, he is to complain thereof to the commanding officer of the regiment, who is hereby required to summon a regimental court martial, for the doing justice to the complainant; from which regimental court martial, either party may, if he thinks himself still aggrieved, appeal to a general court martial. But if, upon a second hearing, the appeal shall appear vexatious and groundless, the person, so appealing, shall be punished at the discretion of the said court martial.
Our understanding of court-martial as a strictly punitive mechanism for the enforcement of the UCMJ may cause us to wonder how one might seek relief from an oppressive commander in such a venue, but an opinion from the Attorney General of the U.S. in 1811, Caesar Augustus Rodney, makes clear that the complaint must be referred to a Regimental Court Martial whose job it was to inquire into the justice or injustice of the complaint, but which had no power to effect redress. Either the complainant or the subject could then appeal the decision to a General Court-Martial, which had the power to discipline the officer complained of, or, interestingly, the complainant himself if the complaint were deemed groundless.
When the first UCMJ was enacted in 1950 this provision carried over into Article 138, where it resides today. Article 138 states that any member of the armed forces who deems himself wronged by his commander and who is refused redress after an application addressed to that commander, is guaranteed review and investigation by the general court-martial convening authority exercising jurisdiction over the subject officer. The GCM convening authority must in-turn investigate the complaint and report to the Secretary of the service concerned. The provision that exposed the complainant to potential court-martial for a groundless complaint was excised.
That the right is statutory and imposes an unmistakable duty on senior officers to report to the Secretary of the service means that invocation of Article 138 should not be lightly undertaken by the complainant, nor once initiated should it be dismissed without thorough and complete investigation by the tasked authorities. Each service has a regulation governing the filing, investigation, and processing of Article 138 complaints. For example, the Air Force, in AFI 51-904 imposes a further obligation of the complainant to bring the action within 180 days of knowledge of the supposed harm. It excises from Article 138 consideration many things that have their own appellate process, such as performance reports, UCMJ disciplinary actions, or flying status.
Why is this important today? Article 138 has come to the fore recently in litigation concerning service members who have deemed themselves wronged by what they believe to be unconstitutional restrictions on free exercise of religion and/or speech. Some who find themselves the subject of letters of counseling, admonition, or reprimand, or otherwise non-reviewable actions by command, argue that the military has gone too far in broadly holding that certain religious and personal belief systems egatively impact good order and discipline, particularly as the definition of “hate speech” is elusive at best, Orwellian at worst. Because in these cases action by the Secretary is deemed final, Article 138 complaints can and have been heard in the Federal Courts. Hence, Article 138 complaints can be a potent means to air out important constitutional issues and have them resolved outside the confines of the Executive Branch.