When a separation action appears to be driven less by genuine cause and more by friction between a service member and a member of the leadership chain, the member naturally looks for a way to challenge it. Article 138 of the UCMJ, the complaint of wrongs provision, is one of the tools that comes up in that situation. It is a powerful accountability mechanism, but its role in actually halting a separation is frequently misunderstood. Understanding what Article 138 can and cannot do is essential before relying on it to stop an adverse action.
What Article 138 is
Article 138, codified at 10 U.S.C. 938, allows a member who believes himself or herself wronged by a commanding officer to seek redress. If redress is refused, the member may complain to a superior authority, which forwards the complaint to the officer exercising general court-martial jurisdiction over the commander concerned. That convening authority is required to examine the complaint and to take proper measures for redressing the wrong. The provision is designed to preserve accountability within the chain of command while giving members a protected avenue to challenge a commanding officer’s actions. Its premise fits the leadership-dispute scenario well, because the complaint runs against a commanding officer and is reviewed by an authority outside that officer’s immediate control.
How the process works
The process generally unfolds in stages. The member first submits a written request for redress to the commanding officer believed to have committed the wrong, identifying the specific wrong and the relief sought. If the commander denies the request or fails to provide redress, the member may then submit a formal written complaint to the immediate superior commissioned officer, who forwards it up to the general court-martial convening authority. Service regulations attach deadlines to these steps, including a requirement in the Army that a commander respond to an initial request for redress within a set period, and a window within which the member must submit the formal complaint after discovering the wrong. The complaint must be in writing, signed by the complainant, and contain the supporting information, including the date the request for redress was submitted and the commander’s response or failure to respond.
The protection against restriction and reprisal
A feature of Article 138 that is especially relevant in a leadership dispute is the protection it provides against interference. Commanders are prohibited from restricting a member’s ability to submit a complaint and from retaliating against a member for doing so. In a situation where the underlying problem is a strained relationship with leadership, this protection matters, because it shields the member’s right to invoke the process even when the very leaders involved would prefer that the complaint not be filed.
What Article 138 does, and does not, do to a pending separation
This is the core of the question, and it requires precision. Article 138 is fundamentally a redress mechanism. It compels examination of a complaint and authorizes a superior authority to direct appropriate remedies. It is not, by its own terms, an automatic stay that freezes a separation the moment a complaint is filed. Filing an Article 138 complaint does not, standing alone, suspend an ongoing administrative separation. Whether a separation is paused turns on the discretion of the authorities reviewing the matter and on the applicable service regulations, not on the mere existence of the complaint.
That said, Article 138 can influence a separation in several practical ways. If the convening authority reviewing the complaint concludes that the commanding officer wronged the member, the authority can order measures to redress that wrong, which may include corrective action affecting the basis for the separation. A complaint that surfaces credible evidence of improper motive or procedural irregularity can prompt scrutiny that leads a command to reconsider or correct the action. And the protection against reprisal can blunt a separation that is itself a form of retaliation. In short, Article 138 can be a lever that produces relief affecting the separation, even though it is not a self-executing stop order.
Article 138 alongside the separation process itself
Because Article 138 does not automatically halt a separation, a member should not treat it as a substitute for the protections built into the separation process. Administrative separation procedures provide their own safeguards, which may include notice of the basis for separation, the right to consult counsel, the opportunity to submit matters in rebuttal, and, in many cases, the right to present the case before an administrative separation board. Those mechanisms are the primary forum for contesting the separation on the merits and for arguing that the action is unsupported or improperly motivated. Article 138 operates in parallel, targeting the wrong committed by the commanding officer, and is most effective when used in coordination with, not instead of, the separation defenses.
Other avenues that interact with Article 138
A leadership dispute that produces an adverse action may implicate more than one remedy. Allegations of reprisal for protected communications may fall within the protections enforced through the inspector general system. Where the dispute has tainted a record, such as an evaluation, the service’s evaluation appeal process and the relevant Board for Correction of Military Records offer routes to correct error or injustice. A member weighing Article 138 should consider how it fits with these other channels, because the best strategy often combines them. Article 138 establishes a formal, documented complaint against the commander; the separation board contests the action on the merits; and records-correction and inspector general channels address collateral harm and reprisal.
Practical takeaways
Article 138 plays a real but limited role in a separation triggered by a leadership dispute. It is a structured complaint mechanism that forces a superior authority to examine a wrong committed by a commanding officer and to direct redress, and it carries firm protections against restriction and reprisal. What it is not is an automatic stay that halts the separation upon filing. A member who believes a separation is the product of a leadership dispute should act promptly within the regulatory deadlines, preserve evidence of improper motive, simultaneously assert the protections available in the separation process itself, and consult defense counsel to coordinate Article 138 with the administrative board, inspector general, and records-correction avenues. Used this way, Article 138 can be an important part of stopping or unwinding an unjustified separation, even if it rarely accomplishes that alone.
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.
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