Article 131g — Wrongful interference with adverse administrative proceeding

Part IV · Punitive Articles

Article 131g. Wrongful interference with adverse administrative proceeding · MCM ¶ 88

2024 Manual for Courts-Martial, United States

(a) Text of statute. Any person subject to this chapter who, having reason to believe that an adverse administrative proceeding is pending against any person subject to this chapter, wrongfully acts with the intent—

(1) to influence, impede, or obstruct the conduct of the proceeding; or

(2) otherwise to obstruct the due administration of justice; shall be punished as a court-martial may direct.

(b) Elements.

(1) That the accused wrongfully did a certain act;

(2) That the accused did so in the case of a certain person against whom the accused had reason to believe there was or would be an adverse administrative proceeding pending; and

(3) That the act was done with the intent to influence, impede, or obstruct the conduct of such administrative proceeding, or otherwise obstruct the due administration of justice.

(c) Explanation. For purposes of this paragraph an adverse administrative proceeding includes any administrative proceeding or action, initiated against a Servicemember, that could lead to discharge, loss of special or incentive pay, administrative reduction in grade, loss of a security clearance, bar to reenlistment, or reclassification. Examples of wrongful interference include wrongfully influencing, intimidating, impeding, or injuring a witness, an investigator, or other person acting on an adverse administrative action; by means of bribery, intimidation, misrepresentation, or force or threat of force delaying or preventing communication of information relating to such administrative proceeding; and the wrongful destruction or concealment of information relevant to such adverse administrative proceeding.

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

(e) Sample specification. In that __________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, (wrongfully endeavor to) [impede (an adverse administrative proceeding) (an investigation) (_____)] [influence the actions of _____, (an officer responsible for making a recommendation concerning the adverse administrative action) (an individual responsible for making a decision concerning an adverse administrative proceeding) (an individual responsible for processing an adverse administrative proceeding) (_____)] [(influence) (alter) the testimony of _____ a witness before (a board established to consider an administrative proceeding or elimination) (an investigating officer) (_____)] in the case of _____, by](promising) (offering) (giving) to the said _____, (the sum of $_____) (_____, of a value of (about) $_____)] [communicating to the said _____ a threat to _____ ] [ _____ ], (if) (unless) the said _____, would [recommend dismissal of the action against said _____ ] [(wrongfully refuse to testify) (testify falsely concerning _____) (_____)] [(at such administrative proceeding) (before such investigating officer) (before such administrative board)] [ _____ ].

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-88-1WRONGFUL INTERFERENCE WITH AN ADVERSE ADMINISTRATIVE PROCEEDING

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), did, (at/on board—location), on or about __________, (wrongfully endeavor to) [impede (an adverse administrative proceeding) (an investigation) (__________)] [influence the actions of __________, (an officer responsible for making a recommendation concerning the adverse administrative action) (an individual responsible for making a decision concerning an adverse administrative proceeding) (an individual responsible for processing an adverse administrative proceeding) (__________)] [(influence) (alter) the testimony of __________ a witness before (a board established to consider an administrative proceeding or elimination) (an investigating officer) (__________)] in the case of __________, by] (promising) (offering) (giving) to the said __________, (the sum of $__________) (__________, of a value of about $__________)] [communicating to the said __________ a threat to __________] [__________], (if) (unless) the said __________, would [recommend dismissal of the action against said __________] [(wrongfully refuse to testify) (testify falsely concerning __________) (__________)] [(at such administrative proceeding) (before such investigating officer) (before such administrative board)] [__________].

Elements

(1) That (state the time and date alleged), the accused wrongfully did (a) certain act(s), that is, (state the act(s) alleged);

(2) That the accused did so in the case of (himself) (herself) (__________) against whom the accused had reason to believe there (was) (were) or would be (an) adverse administrative proceeding(s) pending; and

(3) That the act(s) (was) (were) done with the intent to (influence) (impede) (obstruct) the conduct of the administrative proceeding(s), or otherwise obstruct the due administration of justice.

Definitions & other instructions

“Wrongfully” means without legal justification or excuse.

(One can wrongfully interfere with an adverse administrative proceeding in relation to an administrative proceeding involving (himself) (herself).)

(While the prosecution is required to prove beyond a reasonable doubt the accused had the specific intent to (influence) (impede) (obstruct) the adverse administrative proceeding, there need not be an actual obstruction of the administrative proceeding.)

(“Adverse administrative proceeding” includes any administrative proceeding or action, initiated against a service member by the Department of the Army, the Department of Defense, or an agency of the Department of Defense that could lead to discharge, loss of special or incentive pay, administrative reduction in grade, loss of a security clearance, bar to reenlistment, or reclassification.)

(Proceedings initiated by non-Department of Defense or non-Department of the Army agencies are not adverse administrative proceedings.)

NOTE 2. When proceeding has not begun. For wrongful interference with an adverse administrative proceeding to occur, administrative proceedings need not be pending nor an investigation begun. However, the accused must have had reason to believe there were or would be adverse administrative proceedings. See US v. Athey, 34 MJ 44 (CMA 1992); and US v. Finsel, 36 MJ 441 (CMA 1993). The following instruction should be given when proceedings were not yet pending or the investigation not yet begun:

It is not necessary that administrative proceedings be pending or even that an investigation be underway.

(The accused (also) does not have to know that administrative proceedings have been initiated or begun.) The government must, however, prove beyond a reasonable doubt that the accused had reason to believe there were or would be adverse administrative proceedings against (himself) (herself) (__________) or that some official of the military would be investigating (the accused’s) (__________’s) actions with the purpose of determining the appropriateness of an adverse administrative proceeding.

NOTE 3. Communication with victims or witnesses. Whether communication with a victim or witness constitutes a wrongful interference with an adverse administrative proceeding may depend on what the authorities knew of the matter under investigation at the time and whether the contact or words spoken are unlawful. (NOTE 3, infra, also addresses issues where the accused may have advised a witness to exercise a right to remain silent.) See US v. Guerrero, 28 MJ 223 (CMA 1989) (guilty plea to obstruction of justice upheld where accused told witnesses to lie to criminal investigators after the accused committed an assault); US v. Kirks, 34 MJ 646 (ACMR 1992) (begging parent of child sexual abuse victim to take back charges in return for information about the extent of the abuse was not obstructing justice; parent was not asked to lie or engage in unlawful activity); US v. Asfeld, 30 MJ 917 (ACMR 1990) (saying to a victim “Don’t report me” is not an obstruction of justice as failing to report was neither unlawful nor would it have an impact on the due administration of justice); and US v. Hullet, 36 MJ 938 (ACMR 1993), rev’d on other grounds, 40 MJ 189 (CMA 1994) (accused who apologizes to his/her victim of past indecent language, asks for a truce, and offers to throw out prior counseling statements and give victim a clean slate with which to work does not commit obstruction of justice when there was no evidence accused knew or had reason to believe that the victim had initiated criminal proceedings). Compare US v. Barner, 56 MJ 131 (CAAF 2001) (a request “not to tell” after victim had reported incident, in an attempt to dissuade victim from pursuing complaint, was sufficient to support a finding of obstructing justice). When this issue is raised by the evidence, the following may be given:

Asking that one not reveal or report that an incident occurred is not a wrongful interference with an adverse administrative proceeding unless it is proven beyond reasonable doubt that the accused knew or had reason to believe that there were or would be adverse administrative proceedings pending and the accused’s acts were done with the intent to interfere with those proceedings.

NOTE 4. Advising a witness to exercise a right to remain silent. When the evidence raises that the accused advised a prospective witness to exercise an Article 31 or Fifth Amendment right to remain silent, the military judge should give the instruction immediately following this NOTE on how the accused’s motivation relates to the specific intent element of the offense. See Cole v. US, 329 F.2d 437, 443 (9th Cir.), cert. denied, 377 U.S. 954 (1964) “We hold the constitutional privilege against self-incrimination is an integral part of the due administration of justice. A witness violates no duty to claim it, but one who...advises with corrupt motive to take it, can and does himself obstruct or influence the due administration of justice.” As to a mistake of fact defense on this issue, see NOTE 5.

If the accused advised a potential witness of his/her legal right to remain silent merely to inform the witness about possible self-incrimination, that would not amount to a specific intent to interfere with an adverse administrative proceeding. However, if this advice was given for a corrupt purpose, such as a desire to protect (himself) (herself) or others from the prospective witness’s possibly damaging statements, you may infer a corrupt motive exists and that the accused had a specific intent to interfere with an adverse administrative proceeding. The drawing of this inference is not required.

NOTE 5. Knowledge of the pendency of the proceedings. The accused must not only have the specific intent to obstruct a potential administrative proceeding, he/she must also have reason to believe that proceedings had begun or would begin. Instruction 7-3, Circumstantial Evidence (Intent and Knowledge), is ordinarily applicable.

NOTE 6. Specific intent, mens rea, and mistake of fact. The accused must have had a specific intent to wrongfully interfere with an adverse administrative proceeding. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable. Instruction 5-15, Evidence Negating Mens Rea, and Instruction 5-13, Mistake of Fact, may also be applicable. When evaluating a possible mistake of fact defense, the military judge must be mindful that if the accused has a corrupt purpose, mistake of fact may not be a defense even if the accused thought he/she was advising another to do a lawful act. See Cole v. US, supra, at 443.

NOTE 7. Accomplices and grants of immunity. Trials of wrongful interference with adverse administrative action cases may involve the testimony of accomplices or testimony under a grant of immunity. When an accomplice testifies, Instruction 7-10, Accomplice Testimony, must be given upon request. Instruction 7-19, Witness Testifying Under Grant of Immunity or Promise of Leniency, should be given when an immunized witness testifies.

References

US v. Athey, 34 MJ 44 (CMA 1992); US v. Finsel, 36 MJ 441 (CMA 1993); US v. Guerrero, 28 MJ 223 (CMA 1989); US v. Hullet, 36 MJ 938 (ACMR 1993), rev’d on other grounds, 40 MJ 189 (CMA 1994); Cole v. US, 329 F2d 437 (9th Cir.), cert. denied, 377 US 954 (1964); US v. Jones, 20 MJ 38 (CMA 1985); US v. Barner, 56 MJ 131 (CAAF 2001).

Source: Instruction 3a-88-1 · view original on jagcnet.army.mil