Obstruction of Justice Under the UCMJ
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Obstruction of justice is Article 131b of the UCMJ (10 U.S.C. § 931b): wrongful conduct, in the case of a person against whom the accused had reason to believe criminal or disciplinary proceedings were or would be pending, done with intent to influence, impede, or otherwise obstruct the due administration of justice. Actual obstruction is not required. The Manual’s maximum punishment is a dishonorable discharge, total forfeitures, and 5 years. Related offenses sit beside it in Articles 131 through 131g.
From Article 134 to Article 131b
Before January 1, 2019, obstructing justice was a listed offense under Article 134, which required proof of the “terminal element” (prejudice to good order and discipline or service-discrediting conduct). The Military Justice Act of 2016 (Pub. L. 114-328, § 5445) moved it to Article 131b. The Manual’s analysis notes that proof of the Article 134 “terminal element” is no longer required (MCM 2024, App. 17, ¶83). Conduct before 2019 is charged under the article in force when it occurred.
The statute and the elements
The statute reads: “Any person subject to this chapter who engages in conduct in the case of a certain person against whom the accused had reason to believe there were or would be criminal or disciplinary proceedings pending, with intent to influence, impede, or otherwise obstruct the due administration of justice shall be punished as a court-martial may direct.”
The Manual lists three elements (MCM 2024, Part IV, ¶83.b):
- the accused wrongfully did a certain act;
- the accused did so in the case of a certain person against whom the accused had reason to believe there were or would be criminal or disciplinary proceedings pending; and
- the act was done with the intent to influence, impede, or otherwise obstruct the due administration of justice.
What the Manual’s explanation adds
Paragraph 83.c settles several recurring questions:
- Timing. “This offense may be based on conduct that occurred before preferral of charges.”
- No result needed. “Actual obstruction of justice is not an element of this offense.” An unsuccessful attempt, such as a deletion that investigators later recover, can still complete the offense if the intent was present.
- Which proceedings. Criminal proceedings include general and special courts-martial “and all other criminal proceedings”, and disciplinary proceedings “include summary courts-martial as well as nonjudicial punishment proceedings”.
- Examples. Wrongfully influencing, intimidating, impeding, or injuring a witness, a person acting on charges, a preliminary hearing officer, or a party; and, “by means of bribery, intimidation, misrepresentation, or force or threat of force”, delaying or preventing communication of information about a federal crime to authorized investigators or prosecutors, or endeavoring to do so.
Proving intent
Because actual obstruction is not required, the third element carries the weight of the charge. Conduct that incidentally complicates an inquiry is not obstruction unless it was done to interfere. Intent is proven circumstantially, for example by:
- the timing of an act relative to when the accused learned of an allegation or investigation;
- selectivity, such as deleting only messages tied to the suspected conduct; and
- consistency between the act and the explanation later given.
A routine practice of clearing a device, begun before any reason to anticipate proceedings, points the other way. Pressure on a witness can be implicit in a military setting, where rank and command relationships exist, and can be exerted by text, social media, or through third parties.
False statements and obstruction
A knowingly false official statement is a separate offense under Article 107, with a maximum of a dishonorable discharge, total forfeitures, and 5 years. The two can overlap: the Manual’s examples of obstruction include using “misrepresentation” to delay or prevent the communication of information to investigators. A lie told with the intent to impede an investigation can therefore support an Article 131b charge as well as an Article 107 charge, depending on the facts. How false statements relate to false accusations is discussed in false accusations and wrongful prosecution in military courts.
Refusing consent or a passcode. Consent to a search may be limited or withdrawn, and when the government relies on consent it must prove it by clear and convincing evidence (M.R.E. 314(e)); declining to consent is not, by itself, obstruction. Whether refusing to unlock a device in response to an order can be punished is a separate question involving the order’s lawfulness and self-incrimination principles; it is not resolved by Article 131b.
The 131-series
| Article | Offense | Core conduct | Manual maximum |
|---|---|---|---|
| 131 | Perjury | False testimony under oath in a judicial proceeding | DD, total forfeitures, 5 years |
| 131a | Subornation of perjury | Procuring another to commit perjury | DD, total forfeitures, 5 years |
| 131b | Obstructing justice | Described above | DD, total forfeitures, 5 years |
| 131c | Misprision of a serious offense | Knowing another committed an offense punishable by death or more than 1 year, wrongfully concealing it, and failing to report it as soon as possible | DD, total forfeitures, 3 years |
| 131d | Wrongful refusal to testify | Refusing to qualify as a witness or to answer after being directed by the person presiding | DD, total forfeitures, 5 years |
| 131e | Prevention of authorized seizure of property | Destroying, removing, or disposing of property, knowing authorized persons are seizing or about to seize it, to prevent the seizure | DD, total forfeitures, 5 years |
| 131f | Noncompliance with procedural rules | Unnecessary delay in disposing of a case; knowingly and intentionally failing to enforce or comply with UCMJ procedural provisions | BCD, total forfeitures, 6 months (delay); DD, total forfeitures, 5 years (knowing noncompliance) |
| 131g | Wrongful interference with an adverse administrative proceeding | Acting, with reason to believe such a proceeding is pending, to influence, impede, or obstruct it | DD, total forfeitures, 5 years |
DD means dishonorable discharge; BCD means bad-conduct discharge. Two distinctions from the Manual matter in practice:
- Misprision needs a positive act. “A mere failure or refusal to disclose the serious offense without some positive act of concealment does not make one guilty of this offense” (¶84.c(3)).
- Administrative proceedings belong to Article 131g. An “adverse administrative proceeding” includes any administrative action against a service member “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” (¶88.c).
Charging obstruction with the underlying offense
Obstruction can be charged together with the offense it allegedly tried to hide, and because actual obstruction and proof of the underlying offense are not elements of Article 131b, the obstruction charge stands or falls on its own elements. The defense has two separate tools:
- Multiplicity (R.C.M. 907(b)(3)): a specification is multiplicious “if the proof of such charge also proves every element of another charge”, in which case it is subject to dismissal.
- Unreasonable multiplication of charges (R.C.M. 906(b)(12)): charges that arise from “substantially the same transaction, while not legally multiplicious, may still be unreasonably multiplied”. As applied to findings, the remedy is dismissal of the lesser offenses or merger into one specification. As applied to sentence, under the rule as amended by Executive Order 14130 (December 20, 2024), the remedy is that confinement terms for the affected specifications run concurrently (R.C.M. 1002(b)(2)(B)(iii)), and a ruling on that motion “ordinarily should be deferred until after findings are entered” (R.C.M. 906(b)(12)(B)).
Sentencing
The Manual’s maximum for Article 131b is a dishonorable discharge, total forfeitures, and confinement for 5 years (¶83.d); the statute itself says only “as a court-martial may direct.” When all findings of guilty are for offenses committed after December 27, 2023, the military judge sentences within the applicable sentencing parameter (how the sentencing phase of a court-martial proceeds) beneath that maximum.
Sources
- 10 U.S.C. § 931b, Article 131b, Obstructing justice (Cornell LII)
- 10 U.S.C. § 907, Article 107, False official statements; false swearing (Cornell LII)
- 10 U.S.C. § 931d, Article 131d (Cornell LII)
- 10 U.S.C. § 931g, Article 131g (Cornell LII)
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶¶ 41, 81-88; Appendix 17; R.C.M. 906(b)(12), 907(b)(3); M.R.E. 314(e)
- Executive Order 14130, 2024 Amendments to the Manual for Courts-Martial, United States (December 20, 2024), 89 Fed. Reg. 105343 (govinfo), Annex amendments to R.C.M. 906(b)(12)(B) and 1002(b)(2)
This article is general information about military law, not legal advice for any individual case.