Understanding Article 138 of the UCMJ
Many Service-Members spend an entire military career without ever hearing the words “Article 138.” Others hear the term mentioned in passing and assume it is simply another version of an Inspector General (IG) complaint or a Congressional Inquiry. Neither of these is the case.
Article 138 of the Uniform Code of Military Justice (UCMJ) provides one of the most powerful legal protections available to an individual Service-Member who believes they have been wronged by their commander. Unlike many complaint mechanisms created within the military apparatus, Article 138 is a statutory right created by Congress. It requires the Service-Members military chain of command to formally address allegations that a commander has committed a legal wrong against a subordinate.
Despite its utility, Article 138 remains one of the most overlooked provisions in military law. Many Service-Members are unaware it exists. Others know it exists but misunderstand its purpose, filing complaints that do not fall within its scope. Understanding what Article 138 is, what it is not, when it applies, and how it functions, can make a significant difference for military members facing serious command issues.
What Article 138 Is Designed to Accomplish
At its core, Article 138 serves as a check on command authority.
The military grants commanders extraordinary power over the lives and careers of Service-Members. Commanders can issue orders, initiate disciplinary actions, control leave and pass privileges, influence evaluations, recommend administrative separations, and make countless decisions that affect a subordinate’s daily life and career.
Many commanders exercise that authority responsibly. Occasionally, however, a Service-Member may encounter a commander that has acted unlawfully, arbitrarily, capriciously, or in a manner that constitutes an abuse of discretion. Article 138 exists for those situations. The purpose of the process is not to allow Service-Members to challenge every decision they dislike. Instead, Article 138 is intended to address genuine wrongs committed by commanders and provide a formal avenue for review by higher authority. The process reflects a fundamental principle of military law: while commanders possess significant authority, they are not above accountability.
What Qualifies as a “Wrong” Against a Service-Member
One of the most common misconceptions about Article 138 is that it can be used whenever a Service-Member disagrees with a commander. That is not the standard.
As mentioned above, the term “wrong” under Article 138 generally refers to an action taken personally by a commanding officer that is unlawful, beyond the commander’s authority, arbitrary, capricious, discriminatory, or otherwise unjust. The action must typically affect the Service-Member directly and personally. Examples may include the improper denial of rights or privileges, retaliatory actions, unlawful restrictions, arbitrary decisions regarding leave or duty status, or other command actions that exceed lawful authority.
The analysis is highly fact-specific. A Service-Member’s subjective belief that a commander acted unfairly does not automatically establish a valid Article 138 claim. At the same time, commanders are not insulated from scrutiny merely because a decision falls within an area traditionally associated with command discretion. The key question is often whether the commander exercised lawful discretion or crossed the line into arbitrary or unlawful conduct.
What Article 138 Is Not
Understanding what Article 138 does not cover is often as important as understanding what it does.
Article 138 is not a substitute for every other military complaint process. It is not designed to replace Equal Opportunity (EO) complaints, IG complaints, Article 15 (nonjudicial punishment) appeals, administrative grievance systems, or court-martial appeals. Likewise, Article 138 is generally not intended to address broad complaints about military policy. The process focuses on specific wrongs committed by a commander against a particular Service-Member. This distinction becomes important because many unsuccessful Article 138 complaints fail—not because the Service-Member lacked a legitimate concern—but because the concern belonged in a different forum of redress.
A Service-Member who believes an EO violation occurred may need to pursue EO procedures. A Service-Member challenging nonjudicial punishment most likely needs to utilize the Article 15 appeal process. A federal civilian employee would pursue entirely different remedies. Determining whether Article 138 is the proper vehicle requires careful analysis of the underlying facts and available remedies—this is where a qualified military defense attorney can help.
The Requirement to Request Redress First
One feature that distinguishes Article 138 from many other complaint systems is that the Service-Member must first seek relief directly from the commander responsible for the alleged wrong.
This requirement is often referred to as requesting “redress.”
Before filing a formal Article 138 complaint, the Service-Member must notify the commander of the alleged wrong and request corrective action. In practical terms, this means giving the commander an opportunity to fix the problem before elevating the matter to higher headquarters.
The process could end there. Commanders may review the concern, recognize a mistake, and provide the requested relief. In those situations, the purpose of Article 138 has been accomplished without requiring formal escalation. In our experience, however, this is rare.
If the commander denies the request or fails to provide adequate relief, the Service-Member may proceed with the formal complaint process. This preliminary step of notification is not merely procedural. Failure to properly request redress can create significant problems later in the process. This is a “must do.”
What Happens After the Complaint Is Filed
Once a formal Article 138 complaint is submitted, the matter begins moving through the chain of command for review.
Unlike informal grievances, the complaint receives official consideration by higher authority. The commander is required to forward it to the General Court-Martial Convening Authority (GCMCA). A General or Flag officer will then investigate and determine the appropriate corrective action. The allegations are examined, the commander’s actions evaluated, supporting evidence is reviewed.
The precise procedures vary somewhat among the military services, but the overall concept remains consistent. The complaint is investigated and reviewed at levels above the commander whose conduct is being challenged.
This structure serves an important purpose. Article 138 recognizes that a commander should not be the final judge of allegations concerning his or her own misconduct or abuse of authority. Independent review by superior commanders helps promote accountability and confidence in the system. The outcome may result in relief being granted, partial relief being provided, or the complaint being denied. Regardless of the result, the process creates an official record of the allegations and the command’s response. These records can be important later once a Service-Members leaves service and seeks relief after the fact.
The Strategic Value of Article 138
Even when relief is not ultimately granted, Article 138 can carry substantial strategic significance.
The filing of a properly supported and targeted complaint forces senior leaders to examine the circumstances surrounding the disputed action. It creates documentation. It establishes a timeline. It often requires commanders to articulate and defend decisions that may previously have escaped scrutiny. It creates a record for the future even if not successful initially.
This does not mean Article 138 should be filed casually or used as a tactical weapon in every disagreement. Frivolous complaints rarely help a Service-Member’s position and may undermine credibility. Experienced civilian military defense counsel frequently evaluate whether an Article 138 complaint may strengthen a client’s overall position (or could undermine it); particularly when command actions later become relevant in administrative proceedings, separation boards, officer elimination actions, or other litigation.
Common Mistakes Service-Members Make
Several recurring mistakes appear with Article 138s.
The first is waiting too long to act. Service-Members sometimes spend months hoping a situation will resolve itself before seeking legal advice. By the time they begin exploring their options, critical deadlines have passed or evidence may be more difficult to obtain.
The second is misunderstanding the purpose of the process. Not every disagreement with leadership qualifies as a legal wrong. Filing complaints based solely on dissatisfaction with command decisions often leads to frustration, disappointment, and may close other approaches later.
The third is failing to document events adequately. Like most legal proceedings, Article 138 complaints depend heavily on evidence. Emails, memoranda, witness statements, text messages, counseling forms, and official correspondence frequently become critical pieces of the overall picture.
Finally, many Service-Members attempt to navigate the process without fully understanding the legal standards involved. Because Article 138 occupies a unique space within military law, strategic legal guidance is particularly valuable.
Final Thoughts
Article 138 complaints are often described as one of the military’s best-kept secrets. That description is not entirely inaccurate. Many Service-Members never learn about the process until they find themselves facing a serious dispute with command.
The reality is that Article 138 is neither a magic solution nor an empty formality. It is a legal remedy with specific requirements, limitations, and strategic considerations. When used appropriately, it can force review of command actions and provide an avenue for relief that might not otherwise exist.
The provision exists because Congress understood that commanders wield enormous influence over the careers and lives of Service-Members. While that authority is necessary, it must be exercised lawfully and fairly. When it is not, military members deserve a meaningful mechanism to seek review and correction.
If there is one lesson worth emphasizing, it is this: Service-Members should not assume that an improper command action is beyond challenge simply because it came from a commander. Military leaders possess significant authority, but that authority is not unlimited. Article 138 exists precisely because the military justice system recognizes that accountability must travel both up and down the chain of command.
