Under Article 139 of the UCMJ, commanders may direct collection and pay a claim for property that military personnel willfully damage or wrongfully take, if the claim results from riotous, violent or disorderly conduct.
For example, if Private Bill gets angry at at his civilian girlfriend and throws a rock through the windshield of her car, the commander can direct that the cost of the damage be deducted from Private Bill's pay and give it to the girlfriend. This is in addition, of course, to any other punishment (such as court-martial, Article 15, reprimand, or administrative discharge), that the commander may determine appropriate.
Article 139 is rarely used in the military. Why? Probably because most people (including many commanders and first sergeants) have never heard about it. Article 139 states:
"Whenever a complaint is made to any commanding officer that willful damage has been done to the property of any person or that his property has been wrongfully taken by members of the armed forces, he may, under such regulations as the Secretary concerned may prescribe, convene an board to investigate the complaint. The board shall consist of from one to three commissioned officers and, for the purpose of investigation, it has the power to summon witnesses and examine them upon oath, to receive depositions or other documentary evidence, and to assess the damages sustained against the responsible parties. The assessment of damages made by the board is subject to the approval of the commanding officer, and in the amount approved by him shall be charged against the pay of the offenders. The order of the commanding officer directing charges herein authorized is conclusive on any disbursing officer for the payment by him to the injured parties of the damages as assessed and approved."
It's important to note here that Article 139 claims involve property damaged or taken only, not personal injury or wrongful death. Additionally, the incident must involve willful misconduct, not performance of legally authorized duties, and must arise from violent, disorderly conduct; not conduct involving simple negligence. In order for a claim to be valid under Article 139, the property must have been "willfully damaged" or "wrongfully taken." "Willfully damaged" includes damage inflicted intentionally, knowingly, and purposefully without justifiable excuse. It does not include damage caused inadvertently or through negligence on the soldier's part. "Wrongfully taken" includes any unauthorized taking or withholding of property with the intent to temporarily or permanently deprive the owner or person lawfully in possession of the property.
Article 139 claims cannot be filed for a breach of contract, or a bad check. If a military member does not pay his/her bills, the civilian business cannot file an Article 139 claim. If a a member agreed to buy an item from another member and then defaults on his/her obligation to pay, an Article 139 claim may not be filed.
Submitting a Claim
The claim must be submitted to the commanding officer within 90 days of the incident. However, the commander can extend this time period if he/she finds there is good reason for the delay. Good cause generally includes being unaware of Article 139 or the identity of the offender. The claim can be submitted orally at first, but must be made in writing, including a written sum asked for, before final action can be taken. Ideally, the claim should be submitted to the commanding officer of the unit that the member(s) are assigned to, however if this is not practical, it may be presented to the commander of the nearest military installation.
The claim is then routed to the commanding officer who has special court-martial convening authority over the offender(s). This commander appoints a board of officers to investigate the claim.
After evaluating all available evidence, which may include interviewing the individual against whom the claim was asserted (in accordance with Article 31 rights and the right to counsel), the board:
- Determines if the claim falls under Article 139, UCMJ
- Identifies the offenders; and
- Determines liability and damages
- Assessing damages against the identified service member or members (deducting from the assessment any voluntary or partial payments already made)
- Assessing damages against members who were present during the incident, if authorities cannot individually identify the offenders; or
- Disapproving the claim
If the board approves the claim, the appointing commander then:
- Determines if the claim falls under Article 139 of the UCMJ
- Sets the amount to be assessed against each offender (but not more than the amount fixed by the board) and directs the Defense Finance and Accounting Service (DFAS) to withhold the specified amount from each offender’s pay and to pay the claimant.
- Notifies the offender(s) and claimant of the action taken
The UCMJ, law, and military regulations do not contain any provisions which allow Article 139 claims to be appealed by either the claimant or the offender(s). However, the commander who originally ordered the assessment may reconsider and change the decision if the findings later prove to be wrong (even if offender is no longer a member of that command).
Additionally, a successor in command may change or cancel the assessment only on the basis of newly discovered evidence, fraud, or obvious error of law or fact.