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When commander is wrong, you can seek help

My last column, on the Military Whistleblower Protection Act and Defense Department Directive 7050.6, dealt primarily with situations that do not involve your military commander [“Whistle-blowers protected — if they follow the rules”].

But what if your commander is the one acting improperly? Under Article 138 of the Uniform Code of Military Justice, you have an extremely powerful mechanism to fix an injustice committed by your commander.

Enlisted members are instructed on this mechanism upon completion of recruit training and again whenever they re-enlist. (Do you remember having this article explained to you? If so, send me an e-mail.)

Article 138 complaints are powerful because, by law, they will involve the officer in your chain of command who is exercising general court-martial jurisdiction over the commander about whom you are complaining.

The general court-martial authority will need to send the service secretary information on how the complaint was resolved. I am unaware of any other mechanism that guarantees the most junior person in a unit the ability to involve a general officer, let alone the secretary of the service, in a problem that he is having.

The powers of your commander are not absolute. Article 138 guarantees the right to review an order or decision within the military establishment. Such a right is essential; commanders are human and subject to the same prejudices and arbitrary decision-making as the rest of us. Commanders make mistakes, too, and when given a chance to fix that mistake, most will take it.

Wrongs committed by a commander consist of action or inaction that affects the service member directly and personally. This is typically a violation of law or regulation; conduct beyond the commander’s authority; arbitrary or capricious abuse of the commander’s discretion; or a clear or materially unfair act, such as selective enforcement of policies.

The main subjects ineligible for Article 138 review are general policies of the services or the Defense Department that the commander is properly enforcing; demanding disciplinary action against someone other than the commander (such as complaints against noncommissioned officers); decisions made by others, unless the commander knew or should have known about those decisions and failed to do anything; acts that are not final; and any other situation where procedures exist that provide a right to rebut — such as nonjudicial punishment, an evaluation report, a flight medical evaluation or a court-martial.

In keeping with the idea that issues should be resolved at the lowest levels, in order for an Article 138 complaint to later be taken to the general court-martial authority, you must first file a request for redress with the commander whom you allege is acting improperly.

This allows the commander to correct the injustice without involvement of superior officers. You should describe the problem and specific actions that you recommend be taken to fix it. Be sure to include all evidence, including statements from witnesses who will support your argument. Also ensure you cite Article 138 and notify the commander that this is a request for redress of the misconduct.

You must file the complaint within 90 days (180 days in the Air Force) of learning of the alleged injustice or it may be dismissed as untimely.

If the the commander does not redress the wrong after the initial request, you have the right — and, I would argue, the duty — to report the misconduct to the commander’s superior officer, who must forward your complaint to the general court-martial authority. Your complaint should restate the grievance you filed with the commander and the commander’s response, if any. Again, be sure your complaint clearly states that it is being made under Article 138.

The general court-martial authority will investigate and make a determination that will be forwarded to the secretary of the service.

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The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.

Mathew B. Tully is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates (www.fedattorney.com), a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytimes.com.

Read more of his columns at www.militarytimes.com/community/ask_lawyer.