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What Counts as Retaliation Under Article 132, and How Do You Respond?

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Short answer: Under Article 132 of the UCMJ, retaliation is taking or threatening an adverse personnel action, or withholding a favorable one, because someone reported an offense or made a protected communication. It is most often charged against leaders who counseled, rated, or reassigned a subordinate after a complaint. The defense is showing the action had a legitimate, documented basis and would have happened anyway.

In this video, Michael Waddington explains what Article 132 prohibits, what counts as an adverse action, what the government must prove, and how to respond if you are accused.

What is retaliation under Article 132 of the UCMJ?

Article 132 was added by the Military Justice Act of 2016 and took effect in 2019. It makes it a crime to wrongfully take or threaten an adverse personnel action, or to withhold or threaten to withhold a favorable one, with the intent to retaliate against someone for reporting or planning to report a criminal offense, or for making or planning to make a protected communication.

It also makes it a crime to take those actions to discourage someone from reporting. A protected communication includes complaints to an Inspector General, to Congress, to the chain of command, and to law enforcement. The maximum punishment includes a dishonorable discharge and up to three years of confinement.

What counts as an adverse personnel action?

Nearly anything that affects a service member’s career can qualify:

  • A counseling statement or a referred evaluation
  • A relief, reassignment, or change of duties
  • Denial of leave, a school, or a promotion recommendation
  • A bar to reenlistment or an Article 15

The definition tracks the whistleblower reprisal statute, 10 U.S.C. § 1034, which runs on a separate administrative track through the Inspector General. The same facts can be examined under both.

How do retaliation accusations usually happen?

A pattern repeats. A soldier files a SHARP, EO, or IG complaint. The leader, who may not even know about it, counsels the soldier for a separate problem, gives an evaluation that was already due, or moves the soldier for legitimate reasons.

The soldier or a victim advocate reports the action as retaliation. Now the leader is under investigation, and the timing looks bad even when the reason was sound.

What does the government have to prove?

To convict you under Article 132, the government must prove that:

  • You took or threatened an adverse action, or withheld a favorable one.
  • The other person had reported, planned to report, or made a protected communication.
  • You knew about it.
  • You acted with the intent to retaliate, meaning the report was the reason for your action.

Intent is the whole case. Prosecutors try to prove it through timing, things you said, the lack of a documented reason for the action, and how you treated others in the same situation.

How do you defend against an Article 132 retaliation charge?

The strongest defenses come from paperwork and facts that existed before the complaint:

  • A documented legitimate basis: a counseling for a missed formation on the 10th is not retaliation for a complaint filed on the 12th if it was written on the 10th.
  • No knowledge: if you did not know about the report when you acted, you could not have retaliated for it.
  • Consistency: if you counseled others for the same issue that month, you were enforcing standards.
  • Someone else’s decision: if the evaluation was due, the move was directed from above, or another leader started the Article 15, you were not the actor.
  • Your own words: many cases rest on one frustrated comment, like “you’re going to regret that complaint.” If you said something like that, tell your lawyer now.

What if you are the one being retaliated against?

Article 132 and the IG reprisal process protect you, and a lawyer can help you document what is happening. Keep copies of your complaint, the dates, and every action taken against you afterward.

If you are a leader, understand the other side of this: every action you take after a complaint will be examined for motive, and your document trail is your best defense.

What to do right now

  1. Stop taking any action involving the soldier who complained, and route everything through your commander.
  2. Gather your documents: counseling history, evaluation timelines, emails directing any reassignment, and how you treated other soldiers.
  3. Do not give a statement to the investigating officer or the IG without a lawyer. Article 31(b) applies, and an IG inquiry can turn into a criminal case.
  4. Do not discuss the complaint with the soldier or with peers who will be interviewed.
  5. Get a lawyer early, because a command investigation, the IG, and CID or another law enforcement agency may all be reviewing the same facts.

Key takeaways

  • Article 132 makes retaliation for reporting an offense or making a protected communication a crime.
  • Almost any career action can be an adverse personnel action.
  • Intent is the core of the case, and timing is the government’s main tool.
  • Documentation that predates the complaint is the strongest defense.
  • Never give a statement to the IO or IG without counsel.

Frequently asked questions

Can a counseling statement be retaliation?

Yes, if it was given because the soldier made a report or protected communication. If the counseling had a legitimate, documented reason and you would have given it anyway, that is the core of the defense.

Do I have to know about the complaint to be guilty of retaliation?

Yes. You cannot retaliate for a report you did not know about. Proving when you learned of the complaint is often a key part of the defense.

Is an IG reprisal investigation the same as an Article 132 case?

No. An IG reprisal investigation under 10 U.S.C. § 1034 is administrative, while Article 132 is a criminal offense. The same facts can feed both, which is why you should not talk to the IG without a lawyer.

What is the punishment for retaliation under the UCMJ?

The maximum punishment includes a dishonorable discharge, total forfeitures, and up to three years of confinement. Even without a court-martial, a substantiated finding can lead to relief, a GOMOR, or separation.

Video transcript

Read the full transcript of this video

What counts as retaliation under Article 132? And how do you respond if you’re accused of it? Retaliation is taking or threatening an adverse personnel action against someone because they reported or plan to report an offense or made a protected communication. And it’s charged most often against leaders who counseled, evaluated, or reassigned a subordinate after that subordinate filed a complaint. The defense is proving the action had a legitimate basis and would have happened anyway. I’m Michael Waddington, civilian military defense lawyer and co-founder of Gonzalez & Waddington. Since 2019, retaliation has been its own crime and it’s caught a lot of good NCOs and officers who never thought of themselves as retaliating. Here’s the law.

First, the statute. Article 132 of the UCMJ, added by the Military Justice Act of 2016 and effective in 2019, makes it an offense to, with the intent to retaliate against any person for reporting or planning to report a criminal offense or for making or planning to make a protected communication, wrongfully take or threaten to take an adverse personnel action against that person or wrongfully withhold or threaten to withhold a favorable personnel action. It also covers discouraging someone from reporting. A protected communication includes complaints to the IG, to Congress, to a member of the chain of command, and to law enforcement. The maximum punishment is 5 years and a dishonorable discharge.

Second, what an adverse personnel action is. Nearly anything. A counseling statement, a referred evaluation, a relief, a reassignment, a denial of leave or a school, a bar to reenlistment, an Article 15, a change of duties. The definition is broad and it’s the same definition used in the whistleblower reprisal statute, 10 U.S.C. § 1034, which runs on a parallel administrative track through the Inspector General.

Third, how these cases happen. A soldier files a SHARP complaint, an EO complaint, or an IG complaint. The leader, who may or may not know about it, counsels the soldier for a separate deficiency, or gives an evaluation that was already due, or moves the soldier to another section for legitimate reasons. The soldier, or the soldier’s victim advocate, reports the action as retaliation. Now the leader is the subject of an investigation, and the timing looks terrible.

Fourth, the elements the government has to prove. That you took or threatened an adverse action. That the person had reported, planned to report, or made a protected communication. That you knew it. And that you acted with the intent to retaliate, meaning the report was the reason. Intent is the whole case. The government proves it with timing, with statements you made, with the absence of a documented basis for the action, and with comparison to how you treated others.

Fifth, the defense. One, the legitimate basis, documented before the report. A counseling for a missed formation on the 10th isn’t retaliation for a complaint filed on the 12th if the counseling was written on the 10th. Two, knowledge. If you didn’t know about the report when you acted, you couldn’t have retaliated for it. Three, consistency. If you counseled three other soldiers for the same thing that month, the action was standards, not reprisal. Four, the process. If the evaluation was due, the reassignment was directed from above, or the Article 15 was initiated by someone else, you weren’t the actor. Five, your own words. Retaliation cases are often made by a comment. “You’re going to regret that complaint.” said in frustration. Don’t say it. And if you did, your lawyer needs to know now.

Sixth, how to respond if you’re accused. Stop all action involving that soldier and route everything through your commander. Gather your documentation, the counseling history, the evaluation timeline, the emails directing the reassignment, the treatment of other soldiers. Don’t give a statement to the investigating officer or the IG without counsel. Article 31 applies and the IG track can become the Article 132 track. Don’t discuss it with the soldier or with peers who’ll be interviewed. And get a lawyer because the same facts are being reviewed by a 15-6, the IG, and potentially CID at once.

Seventh, the flip side. If you’re the one being retaliated against, Article 132 and the IG process protect you and a lawyer can help you document it. But if you’re the leader, understand that every action you take after a complaint is filed against your unit will be examined for motive and the document trail is your only defense.

At Gonzalez & Waddington, we’ve defended leaders accused of retaliation by showing that the action they took was the action they’d have taken anyway with paperwork that predated the complaint.

So, retaliation under Article 132, an adverse action taken because of a report, proven by intent and defended by documentation, timing, consistency, and knowledge. If you lead soldiers, write it down before you act. I’m Michael Waddington, a civilian military defense lawyer, former Army prosecutor and defense attorney, and co-founder of Gonzalez & Waddington. We’ve defended service members in some of the most challenging military criminal cases, including sexual assault, domestic violence, homicide, and other serious offenses. We’re also published authors on trial advocacy, cross-examination, and courtroom strategy. We know how military prosecutors build their cases, how commanders make decisions, and what it takes to mount an aggressive strategic defense when your freedom, reputation, and military career are on the line. If you’re under investigation, facing a court-martial, or fighting to save your military career, don’t wait until it’s too late to protect yourself. Visit ucmjdefense.com or call 1-800-921-8607 for a free confidential consultation. Gonzalez & Waddington, hard-hitting, aggressive civilian military defense lawyers.

Talk to a military defense lawyer

Gonzalez & Waddington represents service members worldwide in courts-martial, investigations, and administrative separation boards. Michael Waddington, a former Army JAG officer, has been a lawyer for over 25 years. Call 1-800-921-8607 or visit ucmjdefense.com for a confidential consultation.

This article is general information, not legal advice. Every case is different, and reading it does not create an attorney-client relationship.

What Counts as Retaliation Under Article 132, and How Do You Respond?

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