One of the offenses that we’re often asked about is obstruction of justice under the UCMJ. The specific article is 131 Bravo.
The elements of that offense are as follows, that the accused wrongfully committed a certain act that the accused did. So in the case of a certain person against whom the accused had reason to believe that there were or would be criminal or disciplinary proceedings pending, and that the act was done with the intent to influence impede or otherwise obstruct the due administration of justice. One of the most important things to keep in mind here is that the offense can be based on conduct that occurred long before the perferral of any charges. There just has to be that suspicion that they’re coming. Actual obstruction of justice is not an element of the offense, meaning the person’s actions don’t actually have to have impeded justice just merely that that was their intent.
The other thing you need to keep in mind is that the definition of criminal proceedings includes general courts martial, special courts martial, and any other criminal proceeding. So it could be actually a civilian criminal proceeding. For purposes of this paragraph, disciplinary proceedings refers to summary courts martial and non-judicial punishment, as well as any other action that the command could take in the form of discipline. One of the things that you also need to keep in mind in terms of examples would constitute somebody who’s wrongfully influencing, intimidating, impeding, or injuring a witness. And bear in mind that there is solid military case law that influencing also can be actually somebody being nice to you, like trying to promise something in exchange for that person not cooperating as part of the investigation. There’s this tendency to think that it has to mean or menacing or intimidating or threatening that need not be the case.
One of the other things to keep in mind is that another example could be bribery, intimidation, misrepresentation, or through threat of force on another person delaying or preventing communication of information relating to a violation of a criminal proceeding. The maximum punishment for obstructing justice under the UCMJ Article 131 Bravo is dishonorable discharge, forfeiture of all pay and allowance and confinement for five years. One of the things that we often caution our clients against is going out and committing what we call self-help, right? There’s that tendency, especially when you’re someone who’s maybe a type A person and it can be very difficult to relinquish trust in the process. And we’re not certainly encouraging that you just sit back and relax. Talk to your advocate, be doing the things that your advocate is encouraging you to do. But do not run around and try to collect statements or talk to people or find out what they know because the next thing you know, you’ll find yourself not only in the issue for which you’re under investigation, but now they’re going to go ahead and tack on obstructing justice.
Jocelyn Stewart is a UCMJ court-martial attorney who specializes in defense of allegations of sexual assault for all branches of the military worldwide.
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