Article 138 UCMJ and the National Guard

Article 138 of the Uniform Code of Military Justice provides members of the Armed Forces a way to file a complaint with their commander.  If the commander does not resolve the complaint, he is required to elevate it to a general officer further up in his chain of command.  This is a powerful way for a member to elevate a grievance, and can be done in addition to a complaint to a congressman, or to the Inspector General.  But does it apply to Army or Air National Guard members?  The short answer is no.  Article 2(a)(3) of the UCMJ specifically excludes Guard members from the UCMJ, unless they are in federal service.  On the Air side, AFI 51-904, Complaints of Wrongs  Under Article 138, UCMJ, confirms this by exempting the ANG from the process.  However, some state military codes may permit recourse similar to that found in Article 138.  For example, Iowa Code 29B.118 states: "Any member of the state military forces who feels wronged by the member's commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the governor or adjutant general." Additionally, Guard members who are not in federal status can still file a complaint with their state or US representatives or the Guard Inspector General at their unit.

The views expressed herein are solely those of the author, and do not purport to be the views of the Department of Defense, the Air Force, or the Air National Guard.