UCMJ Article 131d: Wrongful Refusal to Testify

Article 131d punishes a person who, before a court-martial or one of the other listed military proceedings, wrongfully refuses to take the witness oath or to answer a question after the person presiding has directed it. The refusal must be wrongful, and a good faith but legally mistaken belief in a right to stay silent is not a defense. The maximum is a dishonorable discharge, forfeiture of all pay and allowances, and 5 years.

Refusing the oath or a question

10 U.S.C. § 931d: “Any person subject to this chapter who, in the presence of a court-martial, a board of officers, a military commission, a court of inquiry, a preliminary hearing, or an officer taking a deposition, of or for the United States, wrongfully refuses to qualify as a witness or to answer a question after having been directed to do so by the person presiding shall be punished as a court-martial may direct.”

Four elements, starting with a listed proceeding

The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 85.b:

the accused was in the presence of a court-martial, board of officers, military commission, court of inquiry, an officer conducting an Article 32 preliminary hearing, or an officer taking a deposition, of or for the United States, at which a certain person was presiding;
the person presiding directed the accused to qualify as a witness or, having qualified, to answer a certain question;
the accused refused; and
the refusal was wrongful.

Only before the listed proceedings, and only after a direction

The proceeding must be one the statute names, held “of or for the United States,” and the refusal must happen in its presence. Refusing to talk to an investigator outside those proceedings is not this offense.

The refusal must also follow a direction from the person presiding. A witness who hesitates or objects has not committed the offense until the presiding officer has directed an answer and the witness still refuses.

Two ways to refuse

Refusing to qualify as a witness. “To qualify as a witness” means the witness declares that he or she will testify truthfully (¶ 85.c, referring to R.C.M. 807 and Mil. R. Evid. 603).
Refusing to answer a question after having qualified.

A mistaken belief in the right to silence

“A good faith but legally incorrect belief in the right to remain silent does not constitute a defense to a charge of wrongful refusal to testify” (¶ 85.c). The Manual cross-refers to Mil. R. Evid. 301, the privilege concerning compulsory self-incrimination, and to Section V of the Military Rules of Evidence, which governs privileges. Whether a refusal is wrongful is measured against those rules, not against the witness’s own understanding of them.

A 5-year ceiling for refusing

Under ¶ 85.d, the maximum is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

Lying, obstructing, and refusing

A witness who testifies falsely under a lawful oath commits perjury under Article 131 instead. Wrongfully influencing, intimidating, or impeding another witness, with intent to obstruct the due administration of justice, can be obstruction under Article 131b.

Sources

10 U.S.C. § 931d, Article 131d, Wrongful refusal to testify (Cornell LII)
Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 85

General information about military law, not legal advice for any individual case.