The offense commonly known by the title “resistance, flight, breach of arrest, and escape” punishes service members who physically resist a lawful apprehension, flee from it, break the restraint of arrest, or escape from custody or confinement. One feature of this offense surprises many people: the article number changed. When Congress reorganized the punitive articles through the Military Justice Act of 2016, which took effect on January 1, 2019, the substance that long sat at Article 95 was moved to a new section. Understanding both the conduct and the renumbering is essential, and the questions and answers below cover the elements, the related concepts of apprehension and custody, the available defenses, and the consequences.
A Note on the Article Number
1. Is this offense still found at Article 95?
No. As part of the reorganization that took effect on January 1, 2019, the conduct of resistance, flight, breach of arrest, and escape was renumbered. It is now Article 87a of the Uniform Code of Military Justice, codified at 10 U.S.C. 887a. The substance carried over even though the article number changed.
2. What is at Article 95 now?
After the 2019 reorganization, Article 95, codified at 10 U.S.C. 895, addresses offenses by a sentinel or lookout, an entirely different subject. That is why citing “Article 95” for resistance and escape can cause confusion today, and why the current number, Article 87a, should be used.
3. Why does the renumbering matter?
It matters because charging documents, references, and older materials may use the old number while current law uses Article 87a. Anyone researching or defending this offense needs to make sure they are looking at the right, current provision, since relying on outdated citations can lead to mistakes.
4. What is the current statutory text?
Article 87a, at 10 U.S.C. 887a, provides that any person subject to the code who resists apprehension, flees from apprehension, breaks arrest, or escapes from custody or confinement shall be punished as a court-martial may direct. The four-part description gives the offense its familiar title.
Resisting Apprehension
5. What is apprehension in the military?
Apprehension is the military equivalent of an arrest. It is the act of taking a person into custody, that is, clearly notifying the person that they are being taken into custody by someone with the authority to do so.
6. What are the elements of resisting apprehension?
The government must prove that a person attempted to apprehend the accused, that the person was authorized to apprehend the accused, and that the accused actively resisted that apprehension. The resistance must be active, not merely passive failure to cooperate.
7. Does the resistance have to be physical?
The offense requires active resistance to the apprehension. Active resistance involves doing something to oppose the apprehension, as opposed to simply standing still or failing to assist. The precise line between active and passive conduct is fact-specific.
8. Who has authority to apprehend a service member?
Authority to apprehend generally rests with military law enforcement, commissioned, warrant, petty, and noncommissioned officers, and others designated by regulation, within the limits set by the rules governing apprehension. Whether the person attempting the apprehension was authorized is part of the offense.
9. Does the apprehension have to be lawful?
The authority of the person attempting the apprehension is an element. A defense may arise where the person lacked authority or where the attempted apprehension was not proper, so the lawfulness and authority behind the apprehension are central issues.
Fleeing From Apprehension
10. What does fleeing from apprehension mean?
Fleeing from apprehension means running away or otherwise removing oneself to avoid being apprehended after a person authorized to apprehend has begun or signaled the apprehension. Flight was added to this offense to reach those who run rather than physically struggle.
11. How is fleeing different from resisting?
Resisting involves actively opposing the apprehension, often through physical resistance, while fleeing involves leaving or running to avoid it. Both are covered, but they describe different conduct and have their own elements.
12. When does flight become criminal?
Flight becomes criminal once a person authorized to apprehend has initiated the apprehension and the accused flees to avoid it. Merely walking away before any apprehension has begun is different from fleeing an apprehension already underway.
Breaking Arrest
13. What is arrest in the military sense?
In military law, arrest is a form of moral restraint, not physical confinement. A person placed in arrest is directed to remain within specified limits, and the restraint is imposed by an order rather than by physical barriers or guards.
14. What are the elements of breaking arrest?
The government must prove that the accused was placed in arrest by a person authorized to do so, that the accused knew the limits of the arrest, and that the accused went beyond those limits before being released. Knowledge of the limits is essential.
15. How can someone break an arrest that is not physical?
Because arrest is imposed by order, a person breaks arrest by going beyond the limits set by that order before being released, even though no physical barrier exists. Violating the imposed limits is the breach.
16. What if the accused did not know the limits of the arrest?
Knowledge of the limits is an element. If the accused did not know the boundaries imposed by the arrest, that can be a defense to breaking arrest, because the accused cannot knowingly exceed limits that were never made known.
Escape From Custody or Confinement
17. What is the difference between custody and confinement?
Custody is restraint of free movement imposed in connection with an apprehension, while confinement is physical restraint, such as being held in a facility. The offense reaches escape from either form of restraint.
18. What are the elements of escape from custody?
The government must prove that a person authorized to apprehend the accused apprehended the accused, that the accused was in custody as a result, and that the accused freed himself or herself from that custody before being released. The custody must have been lawful in its inception.
19. What are the elements of escape from confinement?
The government must prove that a person authorized to order the accused into confinement did so, that the accused was confined, and that the accused freed himself or herself from confinement before being released. As with custody, the underlying confinement matters.
20. Does the confinement have to be lawful?
The status of the confinement is relevant. Issues with whether the confinement was properly ordered and lawful can affect the analysis, which is why the circumstances of the confinement are examined closely.
21. Is escape complete the moment a person gets away?
Escape is generally complete when the accused frees himself or herself from the restraint before being lawfully released, even if recapture follows quickly. The brevity of freedom does not undo a completed escape.
Knowledge, Intent, and Related Concepts
22. Does the offense require a specific intent?
The various forms of this offense focus on the prohibited acts: resisting, fleeing, breaking arrest, or escaping. Knowledge can be important, particularly knowledge of the limits in a breach-of-arrest case, but the offense is centered on the conduct rather than a specific intent to commit a separate crime.
23. What if the accused did not know an apprehension was occurring?
Whether the accused understood that an apprehension was being made can be a contested issue. Apprehension requires that the person be clearly notified of being taken into custody, so a genuine lack of awareness can bear on the case.
24. Can mistaken belief that one was free to leave be relevant?
Yes. A reasonable, honest mistake about whether one was under restraint or free to go can be relevant to whether the elements are met, depending on the form of the offense and the facts.
25. How does this offense relate to absence offenses like AWOL?
Escaping confinement or breaking arrest is different from being absent without leave. Absence offenses concern unauthorized absence from a unit or place of duty, while this offense concerns escaping or breaking specific forms of restraint imposed in the justice process. The same incident could implicate more than one provision.
Defenses
26. What defenses might apply?
Defenses can include that the person attempting the apprehension lacked authority, that the accused did not actively resist, that the accused did not know the limits of an arrest, that the restraint was not lawfully imposed, that there was no apprehension underway when the accused left, or that the conduct simply did not occur as alleged.
27. Is the authority of the apprehending person often litigated?
Yes. Because authority to apprehend is an element, the defense frequently scrutinizes whether the person had that authority and followed proper procedures.
28. Can excessive force by those apprehending be relevant?
The conduct of those making the apprehension can be relevant to the circumstances and to whether the accused’s response was lawful resistance to unlawful action. How this plays out depends heavily on the facts.
29. What should a service member do if facing these allegations?
The member should invoke the right to remain silent under Article 31, decline to discuss the events with investigators, and request to speak with a defense counsel immediately.
Punishment and Consequences
30. What is the maximum punishment?
The Manual for Courts-Martial sets different maximum punishments for the separate forms of the offense. Escape from confinement is treated more seriously than resisting apprehension, and the maximums can include a punitive discharge, forfeitures, reduction in grade, and confinement. The exact figures should be confirmed in the current Manual under Article 87a.
31. Why do the punishments differ among the forms?
The forms reflect differing levels of seriousness. Escaping lawful confinement, for example, is generally treated as more serious than resisting an apprehension, so the listed maximum punishments differ accordingly.
32. Can these charges be combined with other offenses?
Yes. These offenses often arise alongside other charges, such as the underlying offense that prompted the apprehension. The combination can affect the overall exposure a service member faces.
33. Does a conviction create a federal criminal record?
A conviction at a general court-martial is a federal criminal conviction, with the collateral consequences that can follow, in addition to the military penalties imposed.
34. Can an allegation affect a career even without a conviction?
Yes. Allegations can lead to pretrial restraint, adverse administrative actions, loss of position, and separation proceedings, which can affect a career even without a court-martial conviction.
35. Where can a service member get help?
A service member facing these charges is entitled to free military defense counsel and may also retain an experienced civilian military defense attorney. Because the offense involves technical elements and a renumbered provision, working with counsel who knows the current law, now found at Article 87a, is important.
A Final Word
The conduct described by the familiar title resistance, flight, breach of arrest, and escape remains a serious matter in military justice, even though Congress moved it from Article 95 to Article 87a effective January 1, 2019. Each form of the offense has its own elements, and concepts like apprehension, arrest, custody, and confinement carry specific meanings in military law. Because authority, knowledge, and the lawfulness of the restraint are frequently contested, a service member who faces these allegations should remain silent, request counsel, and make sure that any analysis relies on the current article rather than the old number.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.