La. Admin. Code tit. 41, § II-903 - Inappropriate Subject Matter for Article 138

A. General. The procedures prescribed in this chapter are intended to ensure that an adequate official channel for redress is available to every service member who believes the service member's commanding officer has wronged the service member. For many adverse actions, however, there are other, more specific channels and procedures to ensure the service member has an adequate opportunity and forum to be heard. Those specific procedures usually are more effective and efficient for resolving such matters, and Article 138 procedures should neither substitute for nor duplicate them. Generally, an action is an inappropriate subject for resolution under Article 138 procedures when :

1. review is specifically provided by the LCMJ or the action is otherwise reviewable by a court authorized by the LCMJ or by a military judge or military magistrate;

2. it is taken pursuant to the recommendation of a board authorized by LANG regulation at which the complainant was substantially afforded the rights or a respondent [See Chapter 5, AR 15-6.];

3. LANG regulations specifically authorize an administrative appeal;

4. it is a commander's recommendation or initiation of an action included in, or above.

B. Examples. Examples of actions for which Article 138 is inappropriate include :

1. matters relating to court-martial, non-judicial punishment, confinement, and similar actions taken pursuant to the LCMJ, the MCM, or military criminal law regulations;

2. officer or enlisted elimination actions [AR 635-100; AR 635-200.];

3. MOS reclassification board actions [AR 635-200.];

4. withdrawals of flying status [AR 600-107;

5. appeals from findings of pecuniary or financial liability [See AR 37-103, AR 735-5 for examples.];

6. appeals from administrative reductions in enlisted grades [AR 600-200.];

7. appeals from officer evaluation reports [AR 623-105] or enlisted evaluation reports [AR 600-205.];

8. filing of adverse information (e.g. administrative reprimand) in official personnel records [AR 600-37.].

C. Referral to Alternate Channels. When TAG receives an Article 138 complaint apparently involving an adverse action for which more specific channels and appropriate procedures are available, the officer will act on it as prescribed by regulation. [See AR 27-10, paragraph 20-11.] A decision to leave the matter to be processed in those alternate channels and to so advise the complainant constitutes "proper measures for redressing the wrong complained of" within the meaning of Article 138.

Notes

La. Admin. Code tit. 41, § II-903

Promulgated in accordance with the Office of the Governor, State Military Department, LR 35:2417 (November 2009).

AUTHORITY NOTE: Promulgated in accordance with R.S. 29:11(F).