§ Article 131d : Wrongful Refusal to Testify

Article 131d of the UCMJ (10 U.S.C. § 931d) punishes wrongfully refusing to qualify as a witness or to answer a question, after having been directed to do so, in the presence of a court-martial, board of officers, military commission, court of inquiry, preliminary hearing, or an officer taking a deposition for the United States.

Who It Applies To

Any person subject to the UCMJ 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 presiding person.

What It Covers

1. 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.
2. The presiding person directed the accused to qualify as a witness or, having qualified, to answer a certain question.
3. The accused refused to qualify as a witness or to answer the question.
4. The refusal was wrongful.

“To qualify as a witness” means to declare that one will testify truthfully. Under the Manual, a good-faith but legally incorrect belief in a right to remain silent is not a defense. The privileges recognized by the Military Rules of Evidence, including Rule 301 on self-incrimination, bear on whether a refusal is wrongful.

Maximum Punishment

Maximum authorized punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

Sentencing parameters. Category 2 (1–36 months).

The newer sentencing rules apply, subject to the capital-case rules, when the accused is convicted only of offenses committed after 27 December 2023. See How UCMJ Sentencing Rules Apply. The maximum authorized punishment and the applicable sentencing framework do not predict the sentence in a particular case.

Related and Distinguished

Article 131d addresses a refusal to testify after being directed to do so. Giving false testimony is perjury under Article 131, and conduct intended to obstruct a pending or anticipated case is obstructing justice under Article 131b.

What the Provision Does

Article 131d applies to a person who, in the presence of a court-martial, board of officers, military commission, court of inquiry, preliminary hearing, or officer taking a deposition for the United States, wrongfully refuses to qualify as a witness or to answer a question after being directed to do so. The maximum confinement is 5 years.

History

Article 131d was added to the UCMJ by the Military Justice Act of 2016 (Pub. L. 114-328, § 5447), effective January 1, 2019. Before then, wrongful refusal to testify was charged as an enumerated offense under Article 134.

Sources

• 10 U.S.C. § 931d (Article 131d, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, Part IV, ¶ 85
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C
• Manual for Courts-Martial, United States (2024 ed.), R.C.M. 807 and Military Rules of Evidence 301 and 603