Part IV · Punitive Articles

Article 131d. Wrongful refusal to testify · MCM ¶ 85

2024 Manual for Courts-Martial, United States

Recent revisions Summary of changes Cited by (2)
(a) Text of statute. 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, 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.
(b) Elements.
(1) That the accused was in the presence of a court-martial, board of officers, military commission, court of inquiry, an officer conducting a preliminary hearing under Article 32, or an officer taking a deposition, of or for the United States, at which a certain person was presiding;
(2) That the said person presiding directed the accused to qualify as a witness or, having so qualified, to answer a certain question;
(3) That the accused refused to qualify as a witness or answer said question; and
(4) That the refusal was wrongful.
(c) Explanation. “To qualify as a witness” means that the witness declares that the witness will testify truthfully. See R.C.M. 807; Mil. R. Evid. 603. 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. See also Mil. R. Evid. 301 and Section V of the Military Rules of Evidence.
(d) Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
(e) Sample specification. In that __________ (personal jurisdiction data), being in the presence of (a) (an) ((general) (special) (summary) court-martial) (board of officers) (military commission) (court of inquiry) (officer conducting a preliminary hearing under Article 32, Uniform Code of Military Justice) (officer taking a deposition) (_____) (of) (for) the United States, of which _____ was (military judge) (president), (_____), (and having been directed by the said _____ to qualify as a witness) (and having qualified as a witness and having been directed by the said _____ to answer the following question(s) put to (him) (her) as a witness, “_____”), did, (at/on board—location) (subject-matter jurisdiction, if required), on or about _____ 20 __, wrongfully refuse (to qualify as a witness) (to answer said question(s)).
Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.
3a-85-1TESTIFY-WRONGFUL REFUSAL
NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

DD, TF, 5 years, E-1. (Category 2)

Sample specification

In that __________ (personal jurisdiction data), being in the presence of (a) (an) ((general) (special) (summary) court-martial) (board of officers) (military commission) (court of inquiry) (officer conducting a preliminary hearing under Article 32, Uniform Code of Military Justice) (officer taking a deposition) (__________) (of) (for) the United States, of which _________ was (military judge) (president), (__________), (and having been directed by the said __________ to qualify as a witness) (and having qualified as a witness and having been directed by the said __________ to answer the following question(s) put to (him) (her) as a witness, “__________”), did, (at/on board—location), on or about _________, wrongfully refuse (to qualify as a witness) (to answer said question(s)).

Elements

(1) That the accused was in the presence of (a) (an) ((general) (special) (summary) court-martial) (board of officers) (military commission) (court of inquiry) (officer conducting a preliminary hearing under Article 32, Uniform Code of Military Justice) (officer taking a deposition), (of) (for) the United States, at which (state the name and rank of the presiding official) was presiding;

(2) That (state the name and rank of the presiding official)

(a) directed the accused to qualify as a witness, or

(b) directed the accused, after (he) (she) had qualified as a witness, to answer the following question(s) as a witness, namely: (set forth the question(s) alleged);

(3) That (state the time and place alleged), the accused refused to (qualify as a witness) (answer such questions); and

(4) That the refusal was wrongful.

Definitions & other instructions

(To “qualify as a witness” means for the witness to declare that the witness will testify truthfully.)

NOTE 2. Self-incrimination raised. A good faith but legally incorrect belief in the right to remain silent does not constitute a defense to this offense. When the specification alleges that the accused, after qualifying as a witness, refused to answer certain questions and it appears to the military judge that the refusal was based on an assertion of the witness’ right against self-incrimination, and there is no question of fact concerning grant of immunity, running of the statute of limitations, former trial, or other reason why the accused could successfully object to being tried for an offense as to which the privilege was asserted, the military judge must determine whether the answers to such questions would be self-incriminating as a matter of law. If the military judge determines that the answers to such questions would have been self-incriminating, the judge should grant a motion for a finding of not guilty. See RCM 917. If the military judge determines that there was no possibility the witness would ever be subject to a criminal prosecution for any offenses which could have been disclosed by his/her testimony, the judge should advise the members substantially as follows:

(State the name of the accused), while testifying as a witness at the prior proceeding, could not be forced against (his) (her) will to answer any question if the answer would tend to incriminate (him) (her).

“Incriminate” means to put one in danger of a criminal prosecution or operate against one’s legal rights. You are advised that as a matter of law, the questions involved here which he/she supposedly refused to answer would not have brought out matters which would have incriminated the accused. A good faith but legally incorrect belief in the right to remain silent does not constitute a defense to this offense.

NOTE 3. Grant of immunity or other bar to assertion of privilege raised. If an accused refused to testify based on a claim of self-incrimination which would ordinarily be valid, but an issue of fact exists as to whether trial of the accused for the offense as to which the privilege was asserted was barred because of a grant of immunity, former trial, the running of the statute of limitations, or some other reason, the military judge should submit such issue to the members, with carefully tailored instructions. If there is no contested issue of fact, the military judge should determine the matter as an interlocutory question. If there was no valid legal reason for the refusal, the members should be advised that the accused was required to answer the questions because there was no possibility that the accused would ever be subject to any criminal prosecution for any offense which might have been disclosed by the testimony. Conversely, if the accused was not legally immunized from criminal prosecution for an offense which might be disclosed by that testimony, the military judge should grant a motion for a finding of not guilty. See RCM 917.
NOTE 4. Determining whether any privilege applies. Whether a grant of immunity, or a former trial, embraces the particular offense as to which the privilege against self-incrimination is asserted is ordinarily a question of law for the military judge to determine.
NOTE 5. Refusal to answer based on degrading/non-material questions. When the specification alleges that the accused, after qualifying as a witness, refused to answer certain questions and the refusal was based on an assertion of right, under Article 31(c), Uniform Code of Military Justice, not to make any statement before any military tribunal which is not material and which may tend to degrade him/her, the military judge must instruct the members that to find the accused guilty, the members must determine that the statement was material. When the evidence raises this issue, the members should be instructed substantially as follows:

An accused as a witness before a military tribunal has the right to refuse to answer any question that is not material to the issues being determined by that tribunal and which would tend to degrade (him) (her). To find the accused guilty of this offense, you must be convinced beyond reasonable doubt that the question(s) described in this specification (was) (were) material to the issues being determined.

“Material” means important to the issue or matter of inquiry, but that matter need not be the main issue in the case.

Source: Instruction 3a-85-1 · view original on jagcnet.army.mil
Cross-referencesCited by 2Cites 4Elsewhere 2
Cited by

Provisions elsewhere in the Manual whose text cites Article 131d. Each link opens the citing provision.

Rules for Courts-Martial
Discussion under R.C.M. 704(d)(2) — Immunity generally
…valid grant of immunity may be prosecuted for such refusal. Persons subject to the UCMJ may be charged under Article 131d. A grant of immunity removes the right to refuse to testify or make a statement on self-incrimination…
Discussion under R.C.M. 809(a) — Contempt proceedings generally
…such misconduct in addition to or instead of punishment for contempt. See paragraph 85, Part IV; see also Article 131d. The 2011 amendment of Article 48 expanded the contempt power of military courts to enable them to enforce…
Article 131d cites

Provisions named in the text of Article 131d. Where the cited provision is on this site, the link opens it.

Elsewhere on this site
Maximum punishment chart (App. 12)
1 chart line for Article 131d
Statute of limitations checker
Article 43's general period applies to this offense