When a service member is lawfully apprehended, placed under arrest, or confined, the military justice system depends on that person submitting to the restraint rather than fighting it or running from it. The offenses of resisting apprehension, fleeing, breaking arrest, and escaping from custody enforce that expectation. For much of the UCMJ’s history these offenses lived together in Article 95. A reader researching them today should understand an important point about numbering before going further.
A note on the current numbering
The conduct described by the heading of this article, resistance, flight, breach of arrest, and escape, was historically prosecuted under Article 95 of the Uniform Code of Military Justice. The Military Justice Act of 2016, which took effect on January 1, 2019, reorganized and renumbered many punitive articles. As part of that reform, the resistance, flight, breach of arrest, and escape offenses were moved to Article 87a, codified at 10 U.S.C. section 887a. The designation “Article 95” was then reassigned to a different offense, “Offenses by sentinel or lookout.”
This means that anyone working with current charging documents or the present Manual for Courts-Martial will find these offenses under Article 87a, not Article 95. Older cases, references, and discussions still cite Article 95, and the substance of the offenses carried over largely intact. The discussion below describes that body of law as it currently stands under Article 87a, while preserving the familiar Article 95 heading by which many readers will know it.
The offenses covered
The article defines several related but distinct offenses. Resisting apprehension is actively opposing a person who is attempting to apprehend the accused. Fleeing apprehension is running or otherwise removing oneself to avoid being apprehended. Breach of arrest is going beyond the limits of a lawfully imposed arrest before being released. Escape from custody is freeing oneself from physical control imposed in connection with an offense. Escape from confinement is leaving lawful confinement without authority. Each describes a different way of defeating lawful restraint, and each has its own elements.
Elements of resisting and fleeing apprehension
Apprehension in the military is the equivalent of arrest in civilian terms: it is the taking of a person into custody. To prove resisting apprehension, the government must show that a person authorized to apprehend the accused attempted to do so, that the accused knew the person was attempting an apprehension, and that the accused actively resisted that apprehension. Active resistance means more than mere argument or a failure to cooperate; it involves some physical opposition. To prove fleeing apprehension, the government shows that an authorized person attempted to apprehend the accused, that the accused knew of the attempt, and that the accused fled to avoid it.
A crucial point is that the apprehension must be attempted by someone with authority to do so. If the person lacked authority, the resistance or flight offense is not made out, although other charges may apply depending on the circumstances.
Elements of breach of arrest and escape
Arrest in the military is a form of moral restraint imposed by an order that directs a person to remain within certain limits; it is not physical custody. To prove breach of arrest, the government shows that the accused was lawfully placed under arrest, that the accused knew of the arrest and its limits, and that the accused went beyond those limits before being released. Because arrest is imposed by order, breaching it is in essence a refusal to honor that restraint.
Escape from custody and escape from confinement involve physical restraint. The government must show that the accused was in lawful custody or confinement imposed in connection with an offense, that the accused knew of the restraint, and that the accused freed himself or left without proper authority. The lawfulness of the underlying custody, arrest, or confinement is an element, so a defective or unauthorized restraint can defeat the charge.
The lawfulness requirement and common defenses
Across these offenses, lawfulness is the recurring battleground. Resistance, flight, breach, and escape are offenses only when the apprehension, arrest, or confinement being resisted or defeated was itself lawful. A defense may show that the person attempting the apprehension lacked authority, that the arrest was not properly imposed, or that the confinement was not lawful. Knowledge is also an element, so a genuine lack of awareness that an apprehension was being attempted, or of the limits of an arrest, can be a defense.
It is worth noting that the lawfulness of the restraint is a separate question from the guilt or innocence of the accused on the underlying offense. A person can be lawfully apprehended on probable cause and ultimately be acquitted of the original charge, yet still be guilty of escape if he broke free of lawful custody in the meantime. The remedy for an unjust but lawful restraint is to challenge it through proper channels, not to resist or flee.
Maximum punishment
The maximum punishment depends on which offense is charged. Under the current article, the ceilings vary by the seriousness of the conduct, with escape from pretrial confinement treated more severely than, for example, a simple breach of arrest. The President prescribes maximum punishments and sentencing parameters, and these are revised from time to time, so the controlling figure for a particular charge should be verified against the current Manual for Courts-Martial and the executive order in effect at the time of the offense, under the present Article 87a designation.
In practice
These offenses frequently accompany other charges, because resisting or fleeing usually happens in the course of an encounter that began with some other suspected misconduct. The contested issues are typically whether the person attempting the apprehension had authority, whether the underlying arrest or confinement was lawful, whether the accused knew what was happening, and whether the accused’s conduct amounted to active resistance, true flight, or an actual breach rather than mere reluctance or confusion. For a service member, the safest course when faced with a lawful apprehension or restraint is to submit and then contest the matter through counsel, because adding a resistance, flight, breach, or escape charge can be far more damaging than the conduct that prompted the encounter in the first place.
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.