Table Content
Article 131d of the Uniform Code of Military Justice criminalizes the willful refusal to testify or provide information in certain military justice proceedings. It applies when a lawful order or directive requires a person to give testimony, produce evidence, or otherwise cooperate, and the individual intentionally refuses to comply. The offense supports the integrity of courts-martial and other authorized investigative processes.
Article 131d covers refusals to testify after a person has been properly sworn, ordered, or directed to do so. It also includes situations where an individual declines to answer specific questions that they are legally obligated to address. The statute applies whether the refusal occurs in a court-martial, an Article 32 preliminary hearing, or another authorized military investigation or proceeding.
Any person subject to the UCMJ may be charged under Article 131d. This generally includes active-duty service members, qualifying reservists, and others under military jurisdiction at the time of the alleged offense. Civilians not subject to the UCMJ cannot be charged under this article even if their testimony is sought in a military proceeding.
The offense requires a willful refusal, meaning the accused must intentionally decline to testify or provide required information. Mere misunderstanding, confusion, or inadvertence does not satisfy the required mental state. A lawful privilege, such as the right against self-incrimination when properly invoked, can negate criminal liability.
Attempt liability is uncommon because the offense involves a direct refusal rather than preparatory conduct. Conspiracy liability may apply if two or more individuals agree to obstruct a proceeding through coordinated refusals to testify. Accomplice liability can arise if a person intentionally aids or encourages another’s willful refusal.
The government bears the burden of proving every element of this offense beyond a reasonable doubt. Article 131d addresses the deliberate refusal to provide testimony or evidence when lawfully required in specified military justice proceedings.
The mens rea for this offense is willfulness, meaning the accused’s refusal must be intentional and not the result of mistake, misunderstanding, or inadvertence. The government must show that the accused understood the requirement to testify or produce evidence and deliberately declined to comply.
The actus reus consists of the refusal itself—failing to appear, declining to be sworn or otherwise qualified as a witness, withholding testimony, or withholding documents or other evidence after a lawful directive to provide them.
Key statutory terms include “duly subpoenaed” and “lawful military proceeding,” both of which require that the order or subpoena be validly issued by an authority empowered under the UCMJ or applicable procedural rules to compel the witness’s participation.
Punishment under the UCMJ depends on the law in effect at the time of the offense. Offenses committed before December 27, 2023 are governed by the pre–Military Justice Act sentencing model, which uses fixed maximum punishments. Offenses committed on or after December 27, 2023 fall under the updated sentencing framework that assigns each offense to a sentencing category with specified confinement ranges.
Under the pre_December 27, 2023 rules, Article 131d (Refusal to Testify) carried the following maximum authorized punishment:
These limits reflected the traditional maximum_punishment model, in which each punitive article carried a fixed ceiling for confinement and collateral punishments.
For offenses occurring on or after December 27, 2023, Article 131d is placed within the standardized sentencing_category system. Refusal to Testify corresponds to a category that authorizes confinement up to 3 years, which is Category C under the current structure.
The sentencing_category system differs from the prior model by providing structured confinement ranges rather than a single maximum punishment. Instead of a fixed ceiling, the military judge or panel sentences within the range assigned to the offense’s category. Collateral punishments such as punitive discharge, reduction, and forfeitures remain authorized when they were historically available, but they are no longer tied to individualized maximum_punishment tables for each offense.
Charging decisions under UCMJ Article 131d generally reflect the underlying fact pattern, the quality of the investigative record, and command discretion regarding the importance of a witness’s cooperation. The charge is usually applied when a service member’s refusal disrupts a judicial, nonjudicial, or administrative process where testimony is required and properly ordered.
In practice, Article 131d charges most often arise when a service member is subpoenaed or otherwise ordered to testify in a court-martial, Article 32 preliminary hearing, or administrative proceeding and then deliberately declines to answer required questions. Typical situations include:
These cases often begin when trial counsel, investigators, or a hearing officer report that a required witness has declined to testify despite lawful direction. Command-directed inquiries may document the refusal, while CID, NCIS, OSI, or CGIS may become involved if the refusal intersects with an ongoing felony-level investigation. Statements from legal personnel, documentation of subpoenas or orders, and record-of-proceeding transcripts usually form the evidentiary basis.
Charges under Article 131d are typically part of a broader package addressing witness cooperation issues. Charge-stacking occurs when prosecutors allege both refusal to testify and disobedience of orders, reflecting different legal theories. Overlap is common with obstruction-related provisions when the refusal disrupts investigative momentum or proceedings. Prosecutors may also charge alternative theories to preserve flexibility if the forum later questions whether the order to testify was sufficiently clear or whether the witness’s refusal was absolute.
Prosecutions under UCMJ Article 131d, which addresses refusal to testify, often hinge on the government’s ability to prove each statutory element, the reliability of witness accounts, the admissibility of key evidence, and the proper interpretation of statutory language. Litigation in this area typically focuses on the precise circumstances surrounding the refusal, the authority of the tribunal, and the legal sufficiency of the government’s proof.
Disputes commonly arise over whether the government has established every required element of the offense. These may include whether a lawful oath was administered, whether the witness was properly ordered to testify, whether the forum was authorized to issue such an order, and whether the conduct constituted an actual refusal rather than a misunderstanding or incomplete compliance. Challenges often center on the documentary or testimonial evidence needed to demonstrate that a lawful order was given and that the accused knowingly failed to comply.
Questions of intent, knowledge, or willfulness frequently become focal points in Article 131d litigation. For example, cases may involve disputes over whether the accused intentionally refused to testify or whether the conduct was the result of confusion, miscommunication, or an asserted legal privilege. Courts often evaluate the surrounding context, including the accused’s statements and behavior, to determine whether the requisite mental state has been proven. Because the statute can involve distinctions between deliberate refusal and other forms of noncompliance, mens rea issues are often central to both the prosecution’s burden and the defense’s challenges.
Credibility assessments may influence how fact-finders evaluate the alleged refusal. Conflicting accounts from courtroom personnel, investigators, or other witnesses can create factual disputes about what was said, how instructions were delivered, or whether the accused’s conduct constituted a refusal. These disputes do not determine guilt on their own but can affect how the elements and intent are interpreted and applied.
Evidentiary challenges can arise regarding the admissibility of statements made by the accused, recordings of proceedings, digital communications, or official documents establishing the order to testify. Issues may involve compliance with evidentiary rules, the completeness and reliability of transcripts, or the legality of any searches or data retrieval that produced relevant evidence. Parties may contest whether certain materials properly reflect the circumstances surrounding the alleged refusal.
Ambiguities in statutory language or cross-referenced UCMJ provisions may lead to disputes about the scope of Article 131d. Questions sometimes arise regarding the definition of “refusal,” the authority of the forum issuing the order, or the interaction between Article 131d and other evidentiary or procedural rules. Courts may be required to interpret the statute’s text, historical usage, and related provisions to resolve these issues.
Related perjury provisions that often arise alongside refusals to testify
Subornation of perjury as a connected obstruction offense
Obstruction of justice as a complementary charge to refusing testimony
False official statements, frequently implicated in witness-related misconduct
Failure to obey a lawful order when a service member disregards testimonial duties
Collateral consequences are administrative, professional, or legal effects that may arise from a conviction independent of the sentence imposed by a court-martial. Although they do not constitute criminal punishment, they can influence a service member’s career, post-service opportunities, and certain legal obligations.
A conviction under Article 131d for refusal to testify may lead to administrative actions unrelated to the court_martial sentence. These may include initiation of administrative separation proceedings, with the possibility of an other_than_honorable characterization of service. Promotion eligibility may be restricted, and adverse entries in personnel records can affect continued service and competitiveness for assignments or reenlistment. Retirement eligibility may also be affected if the conviction contributes to a determination that a service member does not meet retention standards. Future military service, including transitions between components, may be limited due to the presence of a disqualifying disciplinary history.
A conviction for refusal to testify can raise concerns about reliability, trustworthiness, and judgment. As a result, it may prompt review, suspension, or revocation of a security clearance, which in turn can restrict access to classified information and limit military occupational opportunities. Post_service employment in fields that require or prefer clearance eligibility may also be impacted.
Convictions under Article 131d do not typically trigger sex offender registration or similar statutory reporting obligations. Any registration or reporting requirements that might apply are governed by federal and state law and depend on the specific nature of the offense conduct, not the article number alone.
The conduct underlying a refusal to testify may, in certain situations, expose an individual to federal or state criminal liability if it intersects with civilian judicial proceedings or investigations. Civil liability may also arise if the refusal results in demonstrable harm to a party in related litigation.
For non_citizens, a conviction may affect immigration benefits if it is viewed as impacting good moral character or compliance with legal obligations. It may also influence future admissibility or naturalization assessments, depending on the totality of circumstances and applicable immigration law.
Decisions made during the investigative phase of a suspected violation of UCMJ Article 131d often shape the trajectory of the case long before any charges are preferred. Early legal representation helps ensure that a service member’s actions, statements, and choices during this period are informed by an accurate understanding of the process and the potential implications.
Military investigations typically begin gathering evidence immediately, including statements, emails, text messages, and command documentation. Early legal involvement can influence how this evidence is preserved, interpreted, and contextualized. Counsel can advise on when and how to provide information, helping prevent misunderstandings or incomplete explanations from becoming fixed parts of the evidentiary record.
Command or law-enforcement interviews often occur before a service member fully understands the allegations or the scope of the investigation. Without legal guidance, a service member may inadvertently provide incomplete, inaccurate, or unnecessary information. Even when Article 31(b) rights are read, the nuances of how to exercise those rights may not be clear without informed advice.
Command-directed inquiries and administrative investigations can run parallel to criminal investigations. Decisions made during these processes—such as whether to provide a statement or documentation—can influence later determinations, regardless of whether criminal charges are ultimately preferred.
Early choices, including consenting to searches or providing written statements, can have long-term effects on both court-martial proceedings and administrative actions. Experienced counsel, including civilian military defense lawyers, can help ensure these decisions are made with full awareness of their potential consequences throughout the case.
Gonzalez & Waddington is a civilian military defense law firm that focuses on representing service members facing UCMJ allegations worldwide. The firm handles a wide range of military justice matters, including courts-martial, administrative actions, and investigations. With extensive experience in the military justice system, the attorneys at Gonzalez & Waddington provide informed guidance and defense strategies for clients navigating complex UCMJ proceedings.
If you are facing allegations involving UCMJ Article 131d or believe you may be under investigation, Gonzalez & Waddington can provide guidance on your options and the processes ahead. For more information or to discuss your situation, you may contact the firm to request a confidential consultation.
Q: What does UCMJ Article 131d: Refusal to Testify cover?
A: Article 131d addresses situations in which a service member, without lawful excuse, refuses to testify or produce evidence in a proceeding where they are legally obligated to do so. This article is intended to protect the integrity of military investigations and courts-martial by ensuring that required testimony is provided. The government must show that the refusal was deliberate and that the individual had a clear, lawful duty to comply.
Q: What is the maximum punishment for UCMJ Article 131d: Refusal to Testify?
A: The maximum punishment may include a dishonorable discharge, forfeiture of all pay and allowances, and confinement for up to five years. Actual sentencing depends on case-specific factors, including the nature of the proceeding, the impact of the refusal, and the service member’s record. The punishment can vary significantly based on how the refusal affected the administration of military justice.
Q: Can an allegation under this article lead to administrative separation even without a conviction?
A: Yes. Commanders have broad discretion to initiate administrative separation based on substantiated misconduct, including refusal to testify. Administrative actions operate under different standards than courts-martial and may proceed even without a judicial conviction. The decision typically considers the member’s reliability, duty performance, and the circumstances surrounding the alleged refusal, along with any available evidence supporting the command’s concerns.
Q: Do I need a civilian military defense lawyer for an investigation under this article?
A: Service members are entitled to military defense counsel at no cost, but some choose to hire civilian military defense lawyers for additional support. Whether to retain civilian counsel is a personal decision based on the complexity of the case, potential consequences, and individual preferences. Civilian attorneys may offer specialized experience, but they are not required for a member to participate in an investigation or respond to questioning.
Q: Can this be handled without a court-martial, such as through administrative action or nonjudicial punishment?
A: Yes. Depending on the circumstances, commands may address refusal-to-testify allegations through nonjudicial punishment or administrative measures rather than a court-martial. The decision typically depends on the severity of the refusal, its impact on the underlying investigation or proceeding, and the member’s service record. Administrative or NJP actions often involve lower burdens of proof and may result in career-related consequences short of criminal conviction.
Q: What types of evidence are commonly used in refusal-to-testify cases?
A: Evidence may include transcripts, recordings, written statements, orders to appear, and testimony from legal personnel or investigators who witnessed the refusal. The government often seeks to demonstrate that the service member understood the obligation to testify and willfully declined. Documentation showing the absence of lawful privilege or excuse is also important. The evidence presented typically focuses on clarity of the order and the member’s response.
Q: Which agencies commonly investigate allegations related to refusal to testify?
A: Investigations may involve military law enforcement agencies such as CID, NCIS, or OSI when the refusal is connected to broader criminal inquiries. Legal offices, including trial counsel and staff judge advocates, also play roles in documenting the refusal and assessing whether further action is appropriate. The involvement of specific agencies depends on the underlying matter in which the testimony was sought and the nature of the associated investigation.
To better understand the Articles of the UCMJ and how military law works in practice, you can review the UCMJ and related authorities here: UCMJ Articles and Military Justice Resources. For additional official guidance, visit the U.S. Navy Judge Advocate General’s Corps website at jag.navy.mil.
A renowned military criminal defense attorney and best-selling author, Michael Waddington defends clients worldwide in serious cases and trains lawyers in advanced cross-examination. He is frequently featured by major media outlets like CNN and 60 Minutes.
Alexandra González-Waddington is a top military and civilian defense attorney who has handled high-profile sexual assault, violent crime, and war-crimes cases globally. Her work is widely recognized by media outlets including 60 Minutes and ABC’s Nightline.
