When a service member is placed on restriction or under another form of moral restraint and then leaves the area or violates a condition, the member is sometimes charged with the military offense historically known as Article 95, which covers resistance, flight, breach of arrest, and escape. A natural defense is that the member did not really understand the terms of the restraint, perhaps because no one explained them or because the member was never trained on what the limits were. Whether that defense works depends on the precise theory charged and on the mental state the offense requires. It also requires understanding that the offense has been renumbered.
The renumbering, and why it matters here
Under the Military Justice Act of 2016, effective January 1, 2019, the offense of resistance, flight, breach of arrest, and escape was renumbered from Article 95 to Article 87a, codified at 10 U.S.C. section 887a. The number 95 was reassigned to a different offense entirely, offenses by a sentinel or lookout, at 10 U.S.C. section 895. Because the question speaks of restriction terms, it refers to the escape and breach offense, which now lives at Article 87a. The discussion below addresses that offense by its substance, since that is what the question is really about.
Breaking restriction versus breaking arrest
A threshold point shapes the entire analysis. Restriction is a moral restraint imposed by orders that limit a member to specified geographic limits. Breaking those limits is ordinarily charged not as breach of arrest or escape under Article 87a, but as a violation of the order imposing the restriction, typically under Article 92 as a failure to obey a lawful order, or as breaking restriction under the general article. Arrest, by contrast, is a specific status that suspends the member from full duty and is enforced by Article 87a’s breach-of-arrest theory. Custody and confinement are distinct still. So the first task is to identify exactly what restraint the member was under and which offense actually applies. The viability of a “did not understand the terms” defense looks different depending on that answer.
The role of knowledge in these offenses
The defense of not understanding the restriction’s terms is really an argument about knowledge and intent. For breach of arrest and for breaking restriction, the member must have been informed of the restraint and its limits. A person cannot breach a restraint the person was never placed under or never made aware of. If the member was never actually placed in arrest or on restriction by someone with authority, or was never told what the limits were, the government may be unable to prove that the member knowingly went beyond limits that the member understood to bind him.
That said, the defense must be precise. The relevant question is usually whether the member knew of the restraint and its limits, not whether the member received any particular formal training program. A member who was clearly told the boundaries of a restriction, and who then crossed them, cannot escape responsibility merely by saying no one gave a class on the subject. The law looks to whether the member was on notice of the limits, and notice can be given by a direct, understandable order. Conversely, if the terms were genuinely never communicated, or were so unclear that the member could not have known what was prohibited, the knowledge element is in real doubt.
Mistake of fact and the honest, reasonable belief
Where the offense requires knowledge that a particular act is prohibited, an honest and, where required, reasonable mistake about the terms of the restraint can negate that mental state. If a member honestly and reasonably believed that a given location or activity was within the permitted limits, because of how the restraint was described, that mistake bears directly on whether the member knowingly violated the restraint. This is a fact-driven inquiry. The clarity of the order, what the member was actually told, the conditions under which the restraint was imposed, and any ambiguity in its terms all matter. A vague or poorly communicated restriction is far more vulnerable to a mistake-of-fact defense than a clear one.
Escape and the limits of the defense
For an escape-from-custody theory under Article 87a, the analysis is narrower. Escape generally turns on whether the member freed himself from lawful custody before proper release, and a claim of not understanding the conditions has less traction once the member is in actual physical custody, because the fact of custody is usually apparent. The “lack of understanding” defense is strongest where the restraint is a status defined by communicated conditions, such as restriction or arrest, and weakest where the restraint is plain physical custody.
Practical defense focus
Counsel raising this defense should pin down the charged theory, gather evidence of exactly what the member was told and by whom, and examine whether the order imposing the restraint was clear and lawful. A challenge to lawfulness is separate but related: an order so vague that a member cannot know what it requires may be defective. The defense should also be ready for the government to prove notice through testimony of those who imposed and explained the restraint.
Bottom line
Lack of training or understanding of restriction terms can serve as a defense to the escape and breach offense now codified at Article 87a, but only in a targeted way. It works by negating the knowledge or intent the offense requires, or by supporting an honest and reasonable mistake about what the restraint allowed. It is strongest when the terms were never clearly communicated and weakest when the member was plainly told the limits or was in obvious physical custody. The first step is always to identify the precise theory charged, because breaking restriction, breach of arrest, and escape each treat the member’s knowledge differently.
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.
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