When a commander imposes nonjudicial punishment under Article 15 of the Uniform Code of Military Justice, one common sanction is restriction, which limits a member to certain areas for a set period. A member who then leaves those limits may wonder whether breaking that restriction can be charged as a separate criminal offense, and specifically whether it falls under what is often called Article 95. The answer requires untangling an old article number from the current law. Breaking a restriction imposed at nonjudicial punishment can be a separate punishable offense, but after recent reforms the correct charge is breach of restriction under Article 87b, not Article 95.
The article number changed in 2019
For many years, escape, breach of arrest, and related offenses were grouped under Article 95 of the UCMJ. The Military Justice Act of 2016, effective January 1, 2019, renumbered the punitive articles. Today Article 95 addresses offenses by a sentinel or lookout, an entirely different subject. The offenses dealing with restraint were redistributed. Resistance, flight, breaking arrest, and escape from custody now sit at Article 87a, while offenses against correctional custody and breach of restriction are codified at Article 87b. Because older references and habits persist, people still say Article 95, but a charge for breaking a restriction is now properly a breach of restriction charge under Article 87b. The substance of the offense, rather than the legacy label, is what matters.
Breach of restriction as a distinct offense
Breach of restriction under Article 87b makes it an offense to go beyond the limits of a restriction before being released by proper authority. To prove it, the government generally must show that a person authorized to do so ordered the accused to remain within certain limits, that the accused knew of those limits, and that the accused went beyond them before being set free by proper authority. The restriction need not arise from a court-martial; it can be a condition imposed administratively or as a sanction. The essence of the offense is knowingly exceeding lawful limits, so the prosecution must establish both the existence and the accused’s knowledge of the boundary that was crossed.
Restriction as a nonjudicial punishment sanction
Article 15 authorizes a commander to impose several minor punishments without a court-martial, and restriction to specified limits is one of them. A member serving restriction imposed at nonjudicial punishment is under a lawful directive to remain within defined areas. If the member knowingly leaves those limits before the restriction ends or before being released, that conduct can satisfy the elements of breach of restriction. So the fact that the restriction originated from an Article 15 rather than from a court order does not shield the member. A restriction lawfully imposed as nonjudicial punishment is a restriction the member can be prosecuted for breaching.
Why this is not improper double punishment
A member might object that being punished at Article 15 and then prosecuted for breaking the resulting restriction amounts to punishing the same thing twice. It does not, because the two events involve different conduct. The Article 15 punished the original misconduct. The later prosecution addresses a new and separate act: knowingly violating the restriction itself. Breaking the restriction is fresh misconduct that occurs after the punishment was imposed, not a re-punishment of the original offense. For that reason, charging the breach is a response to distinct conduct rather than a second bite at the original wrong.
The charging decision and proportionality
Whether a breach of restriction is formally charged is a matter of command and prosecutorial discretion. A minor or technical departure from restriction limits is frequently handled informally or through additional nonjudicial punishment rather than court-martial. Breach of restriction is a relatively low level offense, and its authorized punishment is correspondingly limited. A commander weighing how to respond will consider the seriousness and circumstances of the breach, the member’s record, and the needs of good order and discipline. The point for the member is that the option to charge a breach exists, even if commands often resolve such matters short of a court-martial.
Defenses and points of challenge
A member facing a breach of restriction allegation has several lines of defense. The defense can contest knowledge, arguing the member did not actually know the limits or did not understand that a particular movement exceeded them. The defense can challenge whether the person imposing the restriction had authority to do so and whether the restriction was lawful. The defense can argue that the member was released or authorized to leave, or that an emergency or other recognized justification explains the departure. The defense can also test whether the member truly went beyond the defined limits or merely approached them. Because knowledge and the precise boundaries are central elements, factual disputes about what the member knew and where the member went are often where these cases turn.
Bottom line
Violating a restriction imposed through nonjudicial punishment can result in a separate prosecution, but under current law the proper charge is breach of restriction under Article 87b, not Article 95, which after the 2019 renumbering now covers offenses by a sentinel or lookout. The government must prove that an authorized person imposed the restriction, that the member knew its limits, and that the member knowingly went beyond them before release. Prosecuting the breach is not improper double punishment, because it addresses new conduct rather than the original offense. The decision to charge rests on command discretion, and minor breaches are often handled administratively, while the member retains defenses centered on knowledge, authority, lawfulness, and whether the limits were actually exceeded.
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.