Can you file an Article 138 complaint against your Commander for harrasment?

2017-12-07T11:03:21-05:00

Response by MAJ Bryan Zeski made Dec 7 at 2017 11:05 AM

2017-12-07T11:05:31-05:00

http://www.public.navy.mil/surfor/cnspig/Documents/Article_138_Complaint_of_Wrongs_Against_the_Commanding_Officer.pdf

Article_138_Complaint_of_Wrongs_Against_the_Commanding_Officer.pdf

Response by MAJ Don Bigger made Dec 7 at 2017 11:36 AM

2017-12-07T11:36:46-05:00

Short answer—yes

Long answer—also yes, but I would consider getting some legal advice before doing so. Harassment can be vague and subject to interpretation.

Caveat—I am not a lawyer, and I have been retired for a while. It has been many, many years since I attended Naval Justice School. So, other opinions may be helpful.

Response by CPT Robert Boshears made Dec 7 at 2017 12:52 PM

2017-12-07T12:52:40-05:00

You can do almost anything, no fragging though. Yes, some commanders are wrong, personally I was relieved for not following an order from the BC... I was the 2nd CO to go, as we both asked for that order in writing... it would have ruined the career of an E-6, who did nothing wrong. A Federal court decided in our favor (as the order was given in front of not only the IG, the Brigade Cdr., but a one star, who did nothing...) the Brigade Commander even wrote how to ruin this mans career on a bar napkin, which saved my bacon, as someone in the Pentagon asked for it). Years later, when long after my second pass over... which kind of forced me to go back to my 30% disability from Vietnam, and do the didi, which was upgraded to unemployability (100%), And I went back to a Civil Service position. Needless to say, being right, does not always make it a win. Depending on your position, request a transfer... that is (or used to be) a soldiers right.

You got to have your ducks in order, witnesses... willing to talk and put their careers on the line.

A discretionary act or omission by a commanding officer, under color of Federal military authority, that adversely affects the complainant personally and that is-

(1) In violation of law or regulation;
(2) Beyond the legitimate authority of that commanding officer;
(3) Arbitrary, capricious, or an abuse of discretion; or
(4) Materially unfair.

Sad to say, but you are going up a system that seldom loses. It takes very little to ruin your career... I witnessed a fellow officer asleep, a West Pointer, a Ranger... The BC picked up his legs so he could sleep more comfortably (we were in a DRF 1 status) the new officer jumped up and took a swing at the BC... to which the BC calmly told him that act just ruined his career.

Think long and hard before you file anything official... unless you really have witnesses and proof.

Response by SGM Erik Marquez made Dec 7 at 2017 1:42 PM

2017-12-07T13:42:48-05:00

SSG Private RallyPoint Member Sure you CAN, should you is another question.
Best be sure your "right" and justified in doing so, which means more than disagreeing, disliking or not enjoying the act or decision the CDR made you take issue with.
Seek advice of a lawyer familiar with UCMJ and specifically Art 138 proceedings.
If your ART 138 allegations are proved unfounded I would suggest you consider a new path other then Army Service

Response by 1SG Dennis Hicks made Dec 7 at 2017 3:20 PM

2017-12-07T15:20:28-05:00

My question is where are your first line supervisors? you NCO support chain? Nobody has offered to talk with you advise or help you? You would have a stronger case if you use your support chain. You would be surprised at the support and pressure that can come back down on commanders when they are wrong. Your commanders Immediate supervisor doesn't want his/her career ended over stupidity.

Response by CPT Private RallyPoint Member made Dec 7 at 2017 4:35 PM

2017-12-07T16:35:36-05:00

Have you or any of the others you mentioned actually utilized the open door policy and spoken to your commander directly about it? At least give him/her a chance to address it if you haven't already done so.

If the grievance isn't clearly illegal, immoral, or unethical it is unlikely to go anywhere; so make sure you are correct before you decide to go this route. Talk to SJA; it may fall more in line with an IG or EO complaint.

Response by LTJG Richard Bruce made Dec 7 at 2017 10:19 PM

2017-12-07T22:19:27-05:00

I'm a sailor, who do you consider your "commander"? Suggest having an informal talk to the command NCO. They can have an informal talk to the person one or two steps above your commander. This person may have previous negative history or other problems that only a few people know about. On the other hand, this person may be viewed as God Almighty. In which case, suggest learning to live with the harassment.

Response by LTJG Private RallyPoint Member made Dec 12 at 2017 8:17 AM

2017-12-12T08:17:25-05:00

Yes the full article states: Any member of the Armed Forces
who believes he/she has been wronged by his Commanding Officer and the Commanding Officer has refused
redress, may complain to any supervisor commissioned officer, who forwards the complaint to the officer exercising
general court-martial jurisdiction over the officer against whom it is made.
Before a military may submit an Article 138 complaint, he/she must request, in writing, that the CO address the
wrong.

There are other avenues if your CO has harassed you: Equal Opportunity, etc. Just depends on the type of harassment.

Response by CW3 Private RallyPoint Member made Dec 12 at 2017 3:37 PM

2017-12-12T15:37:34-05:00

I had justification to file an Article 138 complaint against my at-the-time commander, and I probably should have. He formally counselled me on a DA 4856 in writing. When I proved by regulation I had done nothing wrong, he handed me my rebuttal back and said "you didn't have to go to all that trouble". WTAF? Water under the bridge now, that commander is long gone, and I'm long gone from that unit..... and two ranks above where I was when I got counselled.

Response by COL Charles Williams made Dec 29 at 2017 8:38 AM

2017-12-29T08:38:19-05:00

SSG Private RallyPoint Member 1st I am sorry I am late to the discussion.

Yes, Of course you can. While I have never done one, I have had them done against me, buy a Soldier(s) who thought I had stepped outside my bounds... If the senior commander wants to, he/she, will appoint a 15-6 Officer (or similar) to investigate.

But, as SGM Erik Marquez stated, I would consider you options, and seek legal advice as well. Also, remember, there are 2nd and 3rd order effects to everything we do.

For some perspective. I was a Company, Battalion, and Brigade Commander. I was also an enlisted Soldier, who was offered a BS Article 15, by a dumb ass commander, who did not know the facts, and proceed to quickly. He dropped the ART 15, when I refused it, after receiving guidance from TDS. TDS by the way, is not always on your side... Just my view.

938. ARTICLE 138. COMPLAINTS OF WRONGS
11. Miscellaneous Provisions
Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall foreword the complaint to the office exercising court- martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings thereon.
https://www.thebalance.com/article-138-complaint-ucmj-3332814

How to File an Article 138 Complaint

Learn about Article 138, one of the most powerful rights under the rights under the UCMJ. Learn more about the procedures for filing a complaint.

Response by CPL Private RallyPoint Member made Jan 4 at 2018 4:59 AM

2018-01-04T04:59:45-05:00

Yeah, but be ready for them to make life bell for you and retaliate.

Response by LT Terry Lober made Dec 11 at 2018 11:52 AM

2018-12-11T11:52:30-05:00

Yes. But you had better have evidence, and lots of it.

Response by SSG Private RallyPoint Member made Apr 8 at 2021 7:52 PM

2021-04-08T19:52:42-04:00

You can do that, but make you have all the fact, not driven by emotions.