Article 138 of the Uniform Code of Military Justice gives any member who believes a commanding officer has wronged them a formal way to seek redress. An enlisted member can absolutely use it. Whether it is the right tool for unlawful command influence that surfaces during a trial is a different and more nuanced question. Article 138 is powerful for some grievances and ill-suited for others, and command influence affecting a court-martial usually belongs in the trial itself, not in a complaint of wrongs. Understanding the boundaries of the statute is what keeps a member from putting a serious claim in the wrong forum.
What Article 138 does
Article 138 allows a member who has been wronged by a commanding officer, and who has been refused redress on request, to complain to a superior commissioned officer. That superior forwards the complaint to the officer exercising general court-martial jurisdiction, who must examine the complaint and take proper measures for redressing the wrong. The mechanism exists so that abuses of command authority do not go unchecked simply because the person responsible is in the chain of command.
Eligibility is broad. The right runs to any member, which includes enlisted members of every grade. There is no requirement to be an officer, and there is no requirement to be facing court-martial. Commanders are prohibited from restricting the submission of a complaint and from retaliating against a member who files one.
What counts as a “wrong”
The statute reaches a wrong committed by the member’s commanding officer. Service regulations sharpen this into a usable definition. In the Army, for example, a wrong is generally a discretionary act or omission by a commanding officer, taken under color of federal military authority, that personally and adversely affects the complainant and that is in violation of law or regulation, beyond the legitimate authority of that commander, arbitrary, capricious, or an abuse of discretion, or materially unfair.
Two features of that definition matter for a command-influence claim. First, the wrong has to be attributable to the complainant’s commanding officer acting in that capacity. Second, it has to personally affect the complainant. A generalized concern about the fairness of the military justice system, or influence directed at someone else, does not fit.
The key limitation: Article 138 is not a substitute for trial and appellate remedies
Here is where unlawful command influence during a trial runs into trouble as an Article 138 subject. The complaint of wrongs is built to address administrative and personal wrongs, abuses of authority, and violations of law or regulation that fall outside the formal disciplinary process. It is not designed to relitigate matters that have their own dedicated review channels. Complaints under Article 138 generally cannot be used to challenge nonjudicial punishment or court-martial proceedings, because those have separate appeal and review mechanisms within the UCMJ.
Unlawful command influence that arises in a court-martial is precisely the kind of matter the trial and appellate system is built to handle. Command influence is often called the mortal enemy of military justice, and the courts treat it as a matter to be raised and litigated within the case. The accused, through defense counsel, can move to address it before the military judge, who can fashion remedies that range from instructions to dismissal of charges. If the issue is not resolved at trial, it can be raised on appeal to the service court of criminal appeals and the Court of Appeals for the Armed Forces. Those forums can examine the trial record, take evidence on the influence, and grant relief that an Article 138 complaint cannot, such as overturning a conviction or sentence.
Because that trial-and-appeal track exists and is the proper place to litigate the effect of command influence on a court-martial, an Article 138 complaint aimed at the trial itself will typically be redirected or denied as the wrong vehicle.
Where Article 138 can still help
This does not mean Article 138 is useless when command influence is in the air. The statute can reach a commander’s discretionary act that wrongs the member personally and that is separate from the conduct of the court-martial. If a commanding officer takes a retaliatory administrative action, imposes an improper restriction, or abuses authority in a way that personally harms the member and is not itself a court-martial ruling, that administrative wrong can be a proper Article 138 subject. The dividing line is whether the member is challenging something inside the court-martial process, which belongs in the case, or a separate command abuse, which can belong in a complaint of wrongs.
How an enlisted member proceeds
The process begins with a written request for redress submitted to the commanding officer who allegedly committed the wrong. That request should state the specific wrong and the redress sought. The commander responds, granting or denying redress and explaining a denial. If redress is denied, the member submits a written complaint to a superior commissioned officer, and service regulations impose filing deadlines, such as a requirement in some services to file within ninety days of discovering the wrong. The complaint then moves up to the officer with general court-martial jurisdiction for examination and action.
The bottom line
An enlisted member is fully entitled to file an Article 138 complaint, but the statute is the right home for personal wrongs by a commanding officer, not for unlawful command influence affecting a court-martial. Influence that taints a trial should be raised with the military judge and, if necessary, on appeal, where the available remedies are far stronger. A member who is unsure which track applies should consult qualified military defense counsel, because placing a command-influence claim in the wrong forum can waste the limited time available to fix it.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.