UCMJ Article 138 Complaints in the Air Force
Article 138 of the Uniform Code of Military Justice (UCMJ) affords all USAF military members the right to complain about a commander's conduct that harmed or "wronged" an Airman - enlisted or officer. This guide orients you to Art 138's purpose, scope, procedures and command responsibilities.
Purpose of Art 138Article 138 of the UCMJ established the legal right of an Airman to formally complain about a perceived or actual harm or "wrong" committed by a commander against the Airman. This is a powerful tool to obtain justice in situations of unfair or unjust treatment from above the immediate chain-of-command. Other tools include a congressional complaint or an Inspector General (IG) complaint.
Who is covered?The right to complain and request specific remedies or "relief" extends to all Air Force active duty, reserve or guard members who are on Title 10 status (active duty) as well as Airmen subject to the UCMJ while on inactive duty for training, such as during a drill weekend or battle assembly. This right extends to both enlisted personnel, NCOs and officer personnel.
What conduct can be complained about under Art. 138?Command action (or inaction) includes required command action, discretionary actions or omissions by an Airman's commander that adversely impacts the Airman which:
a) Violates a law, regulation or AF Instruction;
b) Exceeds the legitimate scope of the commander's authority;
c) Is an abuse of discretion or arbitrary and capricious; or,
d) Is obviously unfair, such as selectively enforcing standards or unwarranted favoritism.
What conduct is not covered by Art. 138?Command activities which fall outside the jurisdiction of an Art. 138 process include:
a) Conduct or omissions impacting the Airman that were not initiated or approved or ratified by the commander;
b) Disciplinary actions under the UCMJ, to include nonjudicial punishment under UCMJ Article 15;
c) Command action where the ruling instruction requires a final decision by the Secretary of the Air Force;
d) Requests for disciplinary action against another Airman;
e) Commander action pursuant to a recommendation of a board convened under AFI 51-602, Boards of Officers; and,
f) Complaints against a General Court-Martial Convening Authority (GCMCA) concerning the GCMCA's decision on an Art. 138 complaint. However, an Airman can complain about an alleged failure of a GCMCA to forward a copy of their complaint to the Secretary of the Air Force.
What procedures apply?Air Force Instruction (AFI) 51-904 sets out the procedures for filing an Art. 138 complaint. This AFI requires the complaining Airman to:
a) File the Article 138 complaint in writing;
b) Within 180 days of the alleged wrongful act or omission of the commander;
c) Submit the Art. 138 complaint and all supporting evidence to the commander alleged to have committed the "wrong."
AFI 51-904 then requires the commander to take action to either grant all requested relief in full or deny the request, in whole or in part. The commander must put their decision in writing. Note:
a) If denied in whole or in part, the commander must explain why in their written decision;
b) The commander may consider additional evidence in reaching a decision; however, that evidence must be included with the Art. 138 complaint file;
c) If any requested relief is denied, then the Art. 138 complaint is forwarded to the GCMCA within 90 days of denial of the requested relief. NOTE: if the Art 138 complaint is sent to the GCMCA through an intermediate headquarters commander, that commander must forward the complaint to the GCMCA without delay. The intermediate commander may not comment on the merits of the complaint. However, the intermediate commander can provide additional relevant evidence to the GCMCA.
What are the General Court-Martial Convening Authority (GCMCA) responsibilities?The GCMCA, often a Numbered Air Force Commander (or equivalent) must personally review the complaint and may direct additional investigation, if in the GCMCA's discretion, further investigation is required. The final decision may not be delegated by the GCMCA to a subordinate commander or staff member. The GCMCA notifies the complainant, in writing, of their final decision to grant or deny any additional relief and the basis for that decision. The GCMCA should also refer the complainant to any additional avenues of relief that are appropriate to the facts of the complaint (such as to the Air Force Personnel Center for a performance report issue). Once this referral is made, the GCMCA's decision becomes final. The final decision still must be sent to the Secretary of the Air Force for review and disposition.
Helpful Tips.When filing an Art. 138 complaint, an Airman should try to:
a) Stick to the facts of what happened and explain how harmed or wronged the Airman;
b) Use chronological order to list out the facts of what happened;
c) Provide witness statements or at least names and contact information of others that can verify the facts of the complaint;
d) Assemble any evidence, such as emails, photos, documents or other evidence to support the credibility of a complaint.
e) Be careful not to violate privacy rights of others or commit crimes in gathering evidence to support a complaint;
f) Ask for a remedy or "relief" for the wrong. Explain what would correct the situation; and,
g) Remember that you have advocates and counselors that can assist you both on base and off base, to include chaplains, lawyers, victim advocates and others--seek help if you need help.