What is UCMJ Article 95?
UCMJ Article 95 addresses offenses related to resistance to lawful authority, flight from arrest, breach of arrest, and escape from custody or confinement. It applies to service members who attempt to evade lawful military control or obstruct the military justice process.
What actions are considered “resistance” under Article 95?
Resistance under Article 95 refers to any attempt to physically resist, obstruct, or hinder the efforts of military authorities when they are attempting to enforce lawful orders, make an arrest, or execute duties related to the service member’s legal status.
What constitutes “flight” under Article 95?
Flight refers to a service member’s intentional attempt to evade military authorities by leaving or fleeing from their assigned post, location, or duty station. Flight from arrest, for example, occurs when a service member attempts to escape or avoid being taken into custody.
What does “breach of arrest” mean under Article 95?
Breach of arrest occurs when a service member, after being lawfully arrested, knowingly escapes, forcibly resists, or attempts to break free from custody or confinement, violating the terms of their arrest.
What actions would lead to an “escape” charge under Article 95?
Escape under Article 95 includes any attempt to leave confinement or custody unlawfully. This could involve physically breaking out of a detention facility, escaping from military police custody, or fleeing the scene after being placed under arrest.
Can resistance to arrest be considered a separate offense from other charges under Article 95?
Yes, resistance to arrest can be a separate offense under Article 95. If a service member resists arrest or physically obstructs military authorities from carrying out their duties, they can face additional charges, even if they are already facing other offenses.
What is the punishment for resisting arrest under Article 95?
Punishments for resisting arrest under Article 95 can include a dishonorable discharge, confinement for up to 5 years, reduction in rank, and forfeiture of pay. The severity of the punishment depends on the circumstances and the extent of the resistance.
How does the military define “escape” under Article 95?
Escape under Article 95 is defined as a service member’s intentional act of fleeing from military custody, confinement, or detention, with the intention of avoiding their legal obligations or charges. This includes both physical and circumstantial escapes.
Is there a difference between “escape” and “flight” under Article 95?
Yes, while both terms involve evading military authorities, “flight” typically refers to fleeing the scene or location to avoid arrest, while “escape” refers specifically to breaking out of custody, confinement, or detention after being placed under military control.
What are some examples of actions that would qualify as “resistance” under Article 95?
Examples of resistance could include physically struggling with military police during an arrest, using force to break free from handcuffs, or obstructing the military’s efforts to enforce orders or detain a service member. It also includes verbal threats or challenges made during an arrest.
Can a service member be charged under Article 95 for attempting to escape from military custody without using violence?
Yes, even if the escape does not involve violence, a service member can still be charged under Article 95 for fleeing from military custody, as long as the escape was intentional and unlawful.
What constitutes a “breach of arrest” under Article 95?
Breach of arrest occurs when a service member who has been lawfully arrested attempts to escape or resist the arrest by any means, including physical force, fleeing, or using deceit to evade custody.
Can a service member be charged with both “flight” and “escape” for the same incident under Article 95?
It is unlikely to face both charges for the same incident. “Flight” typically refers to evading arrest or avoiding military control, while “escape” is specifically about leaving custody or confinement after being detained. However, a service member could be charged with multiple offenses if they resist arrest and then escape from confinement later.
What is the maximum penalty for escape under Article 95?
The maximum penalty for escape under Article 95 can be a dishonorable discharge, confinement for up to 5 years, and forfeiture of pay. If the escape involved violence, a more severe penalty could be applied.
Can a service member face charges under Article 95 if they escape from a military facility?
Yes, escaping from a military facility, such as a detention center or confinement facility, is a clear violation of Article 95 and can lead to severe penalties, including imprisonment.
Is there any legal justification for a service member to resist arrest or escape under Article 95?
In general, there is no legal justification for resisting arrest or escaping unless the arrest was unlawful or the service member was being detained in violation of their rights. However, claims of unlawful detention or arrest must be proven in court.
Can flight from arrest be considered a lesser offense than escape under Article 95?
Flight from arrest can be considered a lesser offense than escape, as flight is the act of attempting to avoid being detained, while escape involves actually breaking out of detention or custody. However, both are serious offenses and can lead to charges under Article 95.
Does the use of force during resistance or escape make the offense more serious under Article 95?
Yes, the use of force during resistance or escape can elevate the severity of the offense. If a service member uses violence or threats to resist arrest or escape from custody, they may face additional charges, including assault or battery, along with the charges under Article 95.
Can a service member be charged with breaching an arrest even if they didn’t escape but simply resisted?
Yes, if a service member physically resists an arrest, it may be considered a breach of arrest under Article 95, even if they do not escape or successfully avoid being detained. Any active resistance to lawful military authority can result in charges.
Can escape charges be brought if the service member escaped from custody during a temporary detainment or investigation?
Yes, a service member can be charged with escape under Article 95 even if they were temporarily detained or under investigation, as long as the detention was lawful and the escape was intentional and unlawful.
What happens if a service member is charged with both Article 95 and another offense, such as assault?
If a service member is charged with both Article 95 (resistance, flight, or escape) and another offense, such as assault, each charge will be treated separately, and the service member could face multiple penalties, including additional confinement or forfeiture of pay.
Can a service member who escapes or flees be subjected to additional charges related to their original offense?
Yes, if a service member escapes or flees from arrest or confinement, they can be charged with additional offenses related to their original crime, such as desertion or evading capture, in addition to the charges under Article 95.
Can escape from military custody be treated differently based on the reason for the escape?
Yes, if a service member can demonstrate that the escape was due to illegal or inhumane conditions, their escape may be treated differently during sentencing. However, the escape itself remains a violation under Article 95.
Is breaching an arrest the same as attempting to resist military police during an investigation?
No, breaching an arrest refers specifically to attempting to escape or resist once already under arrest or confined. Resistance during an investigation might not qualify as a breach of arrest, but it could lead to other charges related to insubordination or obstruction of justice.
Can escape from a civilian jail result in charges under Article 95?
Article 95 applies specifically to military custody. If a service member escapes from civilian custody, they would generally face charges under civilian law. However, if the service member was transferred to military control or custody, Article 95 could apply.
How does the military prove a charge of escape under Article 95?
To prove escape, the military must show that the service member was under lawful confinement or custody, that they intentionally broke free or fled, and that they did so without proper authority. Surveillance footage, witness testimony, or physical evidence may be used to support the charge.
Can a service member face charges for resisting arrest if the arrest was for a different military offense?
Yes, a service member can face charges under Article 95 for resisting arrest, regardless of the underlying offense for which they are being arrested, as long as the arrest is lawful.
What role does intent play in charges of escape or flight under Article 95?
Intent is a key factor in charges of escape or flight. The prosecution must prove that the service member intentionally tried to evade custody, resist arrest, or escape military confinement, knowing the consequences of their actions.
Can a service member be charged under Article 95 for simply attempting to leave the area during an investigation?
If a service member attempts to leave the area during an investigation and resists military authorities’ attempts to detain them, they can be charged with flight or resistance under Article 95. However, fleeing the area without resisting arrest may not automatically constitute a violation.
Frequently Asked Questions
- What is the maximum punishment for breaching arrest under Article 95?
The maximum punishment for breaching arrest under Article 95 can include confinement for up to 5 years, a dishonorable discharge, reduction in rank, and forfeiture of pay. - Can a service member be charged with escape even if they didn’t use force?
Yes, if a service member intentionally escapes from confinement or detention, they can be charged under Article 95 even if they did not use force during the escape. - What if a service member escapes due to mistreatment while in confinement?
If the service member can prove that their escape was due to inhumane or illegal treatment, it may affect their case, but escape itself is still punishable under Article 95. - Can a service member face both charges for resistance and escape in a single incident?
Yes, if a service member initially resists arrest and then escapes from custody, they can be charged with both resistance and escape under Article 95. - Can a service member be charged with flight from arrest for attempting to evade military police?
Yes, attempting to flee from military police or resist being detained can result in flight charges under Article 95. Even evading police temporarily may lead to charges if the flight was intentional and unlawful. - What happens if a service member flees after being placed under arrest for a minor offense?
Fleeing after being arrested, even for a minor offense, can still lead to charges under Article 95 for flight or escape. The severity of the punishment may depend on the circumstances. - Is there a statute of limitations for charges under Article 95?
Charges under Article 95 generally must be brought within a reasonable time frame after the offense occurs. The specific time limit depends on the type of offense and the military’s disciplinary process. - What should a service member do if they are accused of resisting arrest under Article 95?
If accused of resisting arrest under Article 95, the service member should invoke their Article 31 rights to avoid making self-incriminating statements and seek legal counsel immediately. - Can a service member be charged with flight for leaving a duty station without permission?
Yes, leaving a duty station without permission could lead to flight charges under Article 95 if the intent was to avoid military control or arrest. - Can a service member be charged with escape if they were under pretrial confinement?
Yes, a service member can be charged with escape if they flee from pretrial confinement or detainment. The escape charge would apply regardless of whether the individual had been convicted or was still awaiting trial.