Sexual Assault At Coast Guard Academy, The Webster Smith Case Chap 4

CHAPTER  4

Webster Smith Filed Article 138 Complaint

Article 138 is one of the most powerful rights under the Uniform Code of Military Justice (UCMJ), but it is one of the rights least known and least used by military personnel. Under Article 138 of the UCMJ, "any member of the armed forces who believes himself (or herself) wronged by his (or her) commanding officer" may request redress. If such redress is refused, a complaint may be made and a superior officer must "examine into the complaint."

Article 138 of the Uniform Code of Military Justice (UCMJ) gives every member of the Armed Forces the right to complain that he or she was wronged by his or her commanding officer. The right even extends to those subject to the UCMJ on inactive duty for training. )

Cadet Webster Smith filed an Article 138 Complaint against Captain Douglas Wisniewski. There is no record of  it having been resolved.

ART. 138 of the UCMJ: COMPLAINTS OF WRONGS

Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall foreword the complaint to the office exercising court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings thereon.

Article 138 is one of the most powerful rights under the Uniform Code of Military Justice (UCMJ), but it is one of the rights least known and least used by military personnel. Under Article 138 of the UCMJ, "any member of the armed forces who believes himself (or herself) wronged by his (or her) commanding officer" may request redress. If such redress is refused, a complaint may be made and a superior officer must "examine into the complaint."

Article 138 of the Uniform Code of Military Justice (UCMJ) gives every member of the Armed Forces the right to complain that he or she was wronged by his or her commanding officer. The right even extends to those subject to the UCMJ on inactive duty for training.

Matters appropriate to address under Article 138 include discretionary acts or omissions by a commander that adversely affect the member personally and are:

·         In violation of law or regulation

·         Beyond the legitimate authority of that commander

·         Arbitrary, capricious, or an abuse of discretion, or

·         Clearly unfair (e.g., selective application of standards).

Procedures for filing complaint

Within 90 days (180 days for the Air Force) of the alleged wrong, the member submits his or her complaint in writing, along with supporting evidence, to the commander alleged to have committed the wrong. There is no specific written format for an Article 138 complaint, but it should be in normal military letter format, and should clearly state that it is a complaint under the provisions of Article 138 of the Uniform Code of Military Justice.

·         The commander receiving the complaint must promptly notify the complainant in writing whether the demand for redress is granted or denied.

·         The reply must state the basis for denying the requested relief.

·         The commander may consider additional evidence and must attach a copy of the additional evidence to the file.

If the commander refuses to grant the requested relief, the member may submit the complaint, along with the commander's response, to ANY SUPERIOR COMMISSIONED OFFICER, who is MANDATED to forward the complaint to the officer exercising General Court-Martial Convening Authority (GCMCA) over the commander being complained about. The officer may attach additional pertinent documentary evidence and comment on availability of witnesses or evidence, but may not comment on the merits of the complaint.

(Special Note: Article 138 clearly states that complaints may be addressed to any superior commissioned officer. However, only the Air Force regulations allow the complainant to bypass their chain of command when filing a complaint. The Army requires that the complaint be filed with the "complainant's immediate superior commissioned officer." A complaint in the Navy or Marine Corps must be submitted "via the chain of command, including the respondent." Before reaching the general court-martial convening authority, an intermediate officer "to whom a complaint is forwarded" may "comment on the merits of  the complaint, add pertinent evidentiary material to the file, and, if empowered to do so, grant redress." In the Air Force, the complainant may "submit the claim directly, or through any superior commissioned officer" to the general court-martial convening authority).

GCMCA's Responsibilities

·         Conduct or direct further investigation of the matter, as appropriate.

·         Notify the complainant, in writing, of the action taken on the complaint and the reasons for such action.

·         Refer the complainant to appropriate channels that exist specifically to address the alleged wrongs (i.e., performance reports, suspension from flying status, assessment of pecuniary liability). This referral constitutes final action.

·         Retain two complete copies of the file, and return the originals to the complainant.

·         After taking final action, forward a copy of the complete file to the Secretary of the Service (i.e., Secretary of the Army, Secretary of the Air Force, etc.), for final approval/disposition.

·         The GCMCA is prohibited from delegating his or her responsibilities to act on complaints submitted pursuant to Article 138.

Matters outside the scope of the Article 138 complaint process

• Acts or omissions affecting the member which were not initiated or ratified by the commander
• Disciplinary action under the UCMJ, including non-judicial punishment under Article 15 (however, deferral of post-trial confinement is within scope of Article 138)
• Actions initiated against the member where the governing directive requires final action by the Office of the Secretary of the Service
• Complaints against the GCMCA related to the resolution of an Article 138 complaint (except for alleging the GCMCA failed to forward a copy of the file to the Secretary of the Service)
• Complaints seeking disciplinary action against another
• Situations where procedures exist that provide "the individual notice of an action, a right to rebut, or a hearing" and "review by an authority superior to the officer originating the action." (This includes most administrative boards)

9 MAY 2006

To:     Superintendent, U.S. Coast Guard Academy

From: Cadet 1/C Webster Smith

Subj:  Article 138 Complaint

1.   At about 0200 on 12/4/05 Officers at the direction of the Commandant of Cadets, CAPT Wisniewski entered my room at Chase Hall, took me into custody and removed me to a room in Munro Hall. I was held there, ordered not to leave and was interrogated by Coast Guard Intelligence Investigators twice over the next several days regarding allegations that I had raped certain female cadets.

2.   From the date of my arrest, I was specifically directed not to have contact with other cadets either through personal interaction, telephone or communication via computer. I was forbidden to go to classes but was brought my books such that I could complete remaining work for the academic term.

3.   On 12/16/05, I was allowed to go home to Texas on leave with certain restrictions preserved from the earlier conditions, particularly no contact with any of the Corps of Cadets and I was further restricted from coming within 100 miles of the Academy without specific authorization. I continued in that status until February 14, when I returned to New London to face charges for violations of the UCMJ, filed on February 14.

4.   It had been my fond hope that I could return to training at the Academy. Discussion, in mid-January, between the Commandant of Cadets and my Father, Cleon Smith, indicated that might be likely. In phone discussions between CAPT Wisniewski, my Father and me on Friday 27, January, the Commandant of Cadets made it very clear that he did not intend on bringing me back to the Academy any time soon. He seemed to attribute that to the investigation on sexual misconduct continuing. When asked, he refused to identify any ways that I was considered a threat to the continuance of that activity but allowed that he did not feel that I would continue with my Academy Class. This was quite disturbing because my Father and I felt that I should be brought under whatever restrictive order and directions as appropriate but I could resume my military duties and continue my training. CAPT. Wisniewski refused to consider this option. My Father responded that he felt obligated to raise this issue to another level.

5.   On my behalf, CDR Merle Smith, USCGR (Ret.) attempted to get an appointment with Admiral Van Sice. CAPT Thomas, the Assistant Superintendent, returned that call on 1 February, 2006. He inquired as to the subject of the desired meeting and CDR Smith’s role. CDR Smith identified that he was acting in the role of my counsel. CAPT Thomas expressed concern regarding such a meeting with ADM Van Sice being the Convening Authority, while investigation was being conducted and that he would have to check with the lawyers. CDR Smith pointed out that the Admiral was also the Convening Authority for the purpose of Article 138 complaints and that was the reason for his request. CAPT Thomas said that he would review the matter with the lawyers and get back to him. No further contact was initiated by Academy staff until 8 February, when LT Sanders, my Company Officer called to advise me that charges had been prepared and he would fax them to me.

6.   Upon review, we went from no reason for me to be brought back and just sit for some undeterminable period of time (1/27/06), to a request to meet with the Admiral to discuss Article 138 related issues (2/1/06), to 16 counts on 5 Charges (signed 2/9/06). All of this after 60 days of me in limbo but “continuing investigation”.

7.   I submit that my counsel’s attempt to meet with the Superintendent regarding my rights under Article 138 triggered a retaliatory action in the preparation of the ill founded charges against me that were signed on 9 February. I say ill founded because the Convening Authority saw fit to dismiss 10 of the 13 sex related offenses that were charged, following the recommendation of the Article 32 Investigating Officer. I submit that these charges were crafted to make me appear as a sexual predator and justify my continued separation from the Corps of Cadets and by invoking charges under the UCMJ, preclude me from exercising my rights to complain about the treatment I was receiving from my Commanding Officer. This action was in violation of the law and materially unfair.

8.   By this action, I my banished  status was continued such that even if I were to be found not guilty of every charge I face I was arbitrarily removed from academic training in December by the Commandant of Cadets and maintained in that status for the entire semester contrary to the provisions of the Academy Regulations. I would also submit that the Naval Academy was able to address these issues without imposing this punishment on the Midshipmen similarly accused of rape, which makes my circumstance appear arbitrary, capricious and an abuse of discretion.

9.   On February 16, 2006 the Academy contacted the New London Day newspaper and advised them that I had been charged and a general overview of the charge substance which per further disseminated by the Associated Press and the television networks to the great embarrassment of my parents and public humiliation of both them and me. The Academy had avoided giving information to the media by stating that the matter was under investigation. I fail to see the meaningful distinction regarding public disclosure between pre-charge investigation and the UCMJ mandated Art 32 investigation. I believe that this action was directed by the Commandant of Cadets or at least with his approval. This was continuing mistreatment directed at me, particularly since 10 of those 16 specifications were dismissed.    

10.        The remaining charges and additional charges that have been referred to the GCM will be addressed in that arena but as stated above I feel that I have been wronged by my Commanding Officer as these circumstances have progressed.

/s/

Webster Smith 1/C

There is no record of the disposition of this Article 138 Complaint. If it had been disposed of with proper due process, it is doubtful if the General court-martial would have taken place.

A reliable and well placed source has informed me that the family of former cadet Webster Smith has been unable to get a copy of the disposition of the Article 138 Complaint.

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