Complaints of Wrong Under Article 138

• Author: by Captain Abraham Nemrow
• Pages: 03

In May 1955, paragraph 26b of new Army Regulatiana 624-200 was promulgated which provided that personnel reduced for inefficiency would be advised in writing of their right to submit within ten days following the date of reduction a complaint under Article 138, Uniform Code of Military Justice.1 Prior to the appearance of the new regulations, Article 138 as known to exist, and, legally at any rate,l It was presumed that all enlisted personnel understcod its provieions. In fact, it was rarely utilized and little understood. Army commanders, their staffs, and legal advisers had for many years accepted the attitude that the articles relating to complaints were antiquated and of slight significance.8 For example, in testimony before the House Subcommittee on Nilitary Affairs relative to Article of War I2l,* the forerunner of current Article 138, Brigadier General Enoeh H. Crowder, then The Judge Advocate General of the Army, said :

"This is zn unmed Article and 1 przsume B Etrong argument could be made that it had been repeaied by There is I think no demand for it in the %emice, and I can recall but one trial under this Bltide, 01,rather but one inaentigatmn under it in my 38 rears of seriiee. The in-Spectors visit the poita and they hear the soldiers' eomplalntl. Then the eoldiers can make their complaints to the commanding offiears and inYeStig*-tions and trials result. Substantiel juitiee is done, and this article i S Of "0use in the service. I do not care nhether it is retuned, furthe? than it ED.eumbera the eade beeauae the ~ervice has outlived it. I do not know why

' Thii article was adapted from B theai? preeented to The Judge Advacate

FE;;:,S;,':";;~ P , k A ~ ~ ~ ~ , " , t b ;:i:;;h;;;

presented herein are thole of the author and do not neceJJarily represent the views of the Judge Adraeate General's School or any other ZOVOI(1-mental agency.

Office of The Judge Advocate General. U. S. Arms, R'ashington 26, D. C.: member of the hiassachuJett% State Bar: graduate of North-

eastern llniveriii" 1.aa, SCh""1

reference to Article 138 and as the cadifiers had no Intent to Ch8.We the eubitantire provisions of the enactment, m y future citation of +hiS 1 1 ~ . % , , \ annsa, ss Iriirl. 119

... .

. ... ..~~... _.

........ ._.

2 .4rt. 13- UCDIJ, requires that certain articles of the Code, includhg

18s. shah be carefully explained to every enlisted peraan at the time of hir entrance on active dutv in an\ of the armed iorce. of the United States, 01 within 6 dsfs thereifter: again after he has com-pleted 6 months of active duty: and aiain at the time he reenlists. Winthrop. liilitary Law and Precedents 600 (Zd ad. 1020 reprint).

S Act of 4 Jun 1920.41 Stat. 811.1

*oo "O(8 4.3

'*

ti?& article is reinstated, unless somebody thinks it is good pieachment to have on the itatute bmks." I

There was considerable confusion a3 to the procedures to be used in processing the Article 138 complaints engendered by the reduction regulations as there had never existed any implementing regulations for this statutory provision, whereas there had been in effect in the Army for many years standing procedures for the receipt and processing of complaints through inspector general channels. Shortly after the dissemination of the reduction regulation, inspectors general were precluded from taking action in connection with Complaints of wrongs or appeals made pursuant to Article 138.1 It was then anticipated, and experience has proven it a valid prediction, that staff judge advocates would be responsible for processing and transmitting complaints filed under AR 624-200 and Article 138.

Shortly after the effective data of the regulations with respect to reductions, it became apparent that complaints' would be commonplace. As the regulations authorized commanders to reduce enlisted personnel more than one pay grade for inefficiency,8 it was well known that rhi. procedure was being utilized frequently; and that the individuals so reduced would as a matter of course appeal such reduction on the theory that they had nothing to lose. Staff judge advoeates were, therefore, immediately confronted with various problems concerning the procasing and transmitting of Article 138 complaints. Resort to the various manuals for courts-martial,

ARTICLE 138 COMPLAINTS

to Army regulations or to military publications failed to shed light on many questions. The following are examples of some of the many problems that were raised: To what extent and in what manner should the officer exercising court-martial jurisdiction over the officer against whom the complaint was made investigate the complaint; what measure3 of redress could be taken, especially in those cases where it was found that the reduction was not supported by sufficient evidence of inefficiency ; what type of proceedings were required by the Article; what action could be taken on such praceedings by superior commanders? A lack of uniformity in the processing of complaints as to inefficiency reductions was soon apparent. As a result of inquiries made by \,arious staff judge advocates, much valuable guidance was furnished by the Office of The Judge Advocate General, and it appeared that within a reasonable time the pracedures would become standardized.

However, on 8 June 1966, Army regulations concerning promotions and reductions were again revised, and significantly the reference to Article 138 was omitted.@ Of coume, the right of the individual so reduced to appeal or complain to higher authority still exists. This was clearly recognized when the revision of the Army regulations in question was under consideration in the Department of the Army.

It was noted:"The intent of the propaned change is to permit an infomsl method ofcomplaint in addition to the right of complaint under Article 188. Prior to promulgation of AR 624-200, the majmity of complaints were handled under the informal prwedure, either orally 07 by ~mies~ondcn~e.

Repreaentstives of The ins pee to^ General and The Adjutant General indicated that the proposed changes would re-establish the informal procedura used In handling complaints of this type. If, however, a eomplsint was Bubmitted sssoificully under Article 158 the pro~iaians thereof would be followed, but if complaint was not made ipeeifitdiy thereunder the proposed informal method would be used, which would eliminate many complaints without mer& together with the necessity of the administrative requirements of Artide l88."10

It is reasonable to assume that formal complaints under the provisions of Article 138 with respect to inefficiency reductions will still be submitted frequently. The procedure under Article 138 having been spotlighted, it is not likely to fade entirely into obscurity. The noncommissioned officer or specialist who feels himself aggrieved by the reduction will no doubt explore every avenue of re-dress known to him. He will probably seek that method of appeal which assures him the best imnartial review. The Droceedinns under

Par. 24b, AR 624-200,8 Jun 1958, as changed.10 Memorandum retained in OTJAG concerning opinion JAGA 186617908,

20 Oet 1855, emphasis added.

Article 138, being formal proceedings somewhat like a board of inquiry, accomplish this objective more than any other complaint procedure.

Although reductions for inefficiency were the reason for the recent attention to the complaint procedure guaranteed by Article 138, this procedure has a functional purpose in other fields wherein the military person feels himself aggrieved. The use of Article 138, although historically infrequent in practice, nevertheless has a de-finite place in the administration of personnel matters. Therefore, it is incumbent upon all individuals in the military service who may be involved with a complaint made pursuant to Article 138 to have a thorough understanding of the provisions thereof, including their basic aim, their scope and limitations, and the procedures to be followed.

The substance of Article 1% is not of recent origin. The provisions of the Article may be traced to the military code promulgated in 1688 by the English King, James 11." In general, the James mde and subsequent British12 and early AmericanIa articles of war were in two parts: The first offered a method of relief to an "officer" who thought "himself wronged by his Colonel, or the commanding afficer of the regiment"" while the latter provided a grievance procedure for the "inferior officer or soldier" wronged by his superior." Though the article concerning complaints of officers was once considered in some quarters a device for the "settlement of professional disputes,"'a it came ta be recognized that the true purpose of botharticles was the protection of subordinates from the abuses of mls-guided superior autharity.ll

Article 1211'of the 1920 Articles of War was the direct precursor of the current redress procedure. It afforded but one remedy to both officer and enlisted man and substituted an examination into the complaint by the comanding general for the former more formal hearing by a "regimental eourt-martial"'Q with a right of appeal to

Articles ai War of James 11. Arts. L, LI and LVII (1888). Winthrop,

E.#., AItieles of i+:r of 1761. I XII, Arts. I, 11, Wintbrop, 09, oit. SUP70 st 887 838.

E.#., krticied a i War af 1806, Arts. 34, 36, Winthrop, op. dt. supla, at

OP. ait. mprn note a t 827.

ARTICLE 138 COMPLAINTS

a general court.20 In spite of vigorous efforts to expunge these provisions from the law?' the present Article 138 is a virtual reenactment 22 of former 121-and now reads :

"Any member of the armed forces who believes himself mowed by hie eommanding officer. and who, npon due application to that commanding ameer, is refused redress, may eomplain to m y superior officer. who shall forward the complaint to the officer exercising general coUremaTti*i jurisdietion over the officer against whom it is made. The officer exereiring general emremartial jurisdiction @hall examine into...