The offense historically charged as Article 95 of the Uniform Code of Military Justice covers resistance, flight, breach of arrest, and escape. Anyone researching the authorized punishments should understand a critical structural point: the Military Justice Act of 2016 reorganized the UCMJ’s punitive articles, effective January 1, 2019, and these offenses are now codified as Article 87a, at 10 U.S.C. 887a. The conduct and the offense categories remain those traditionally associated with Article 95. This article breaks down the maximum punishments by offense type and explains how the sentencing framework has itself changed.
How maximum punishments are set
The statute does not list specific confinement figures. It provides that a person who commits these offenses shall be punished as a court-martial may direct. The actual ceilings are established through the Manual for Courts-Martial. Historically, the Manual set a maximum punishment for each offense type. Following further reforms, the Manual’s 2024 edition assigns offenses to sentencing categories in its Appendix 12A framework rather than relying solely on the older fixed-maximum tables. The figures below reflect the longstanding maximum punishment values associated with each offense type under the pre-reform Manual tables, which remain the standard reference point for understanding the relative severity of each offense.
Resisting apprehension
Resisting apprehension occurs when a person authorized to apprehend the accused attempts to do so and the accused actively resists by force or violence. The maximum punishment historically authorized is a bad-conduct discharge, forfeiture of all pay and allowances, and confinement for one year. As with any offense carrying a punitive discharge, reduction to the lowest enlisted grade may also be adjudged.
Flight from apprehension
Flight from apprehension occurs when an authorized person attempts to apprehend the accused and the accused flees or evades that apprehension. This offense type historically carries the highest of the non-escape maximums in this group: a bad-conduct discharge, forfeiture of all pay and allowances, and confinement for two years. Reduction to the lowest enlisted grade may also be imposed.
Breach of arrest
Breach of arrest applies where the accused was placed in arrest by competent authority, meaning directed to remain within specified limits, and then went beyond those limits before being released. This is treated as the least serious offense type in the group. The maximum punishment historically authorized is forfeiture of two-thirds pay per month for six months and confinement for six months. Notably, no punitive discharge is authorized for breach of arrest under the traditional table, which distinguishes it from the other offense types.
Escape from custody
Escape from custody occurs where the accused was in custody, meaning under actual or physical restraint, and freed themselves or was freed before lawful release. The maximum punishment historically authorized is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for one year. Escape carries the more severe punitive discharge, the dishonorable discharge, reflecting the seriousness of breaking free of physical restraint.
Escape from confinement
Closely related to escape from custody is escape from confinement, including pretrial or post-trial confinement. Escape from such confinement historically carries the most severe maximum in this family of offenses: a dishonorable discharge, forfeiture of all pay and allowances, and confinement for five years. This elevated ceiling reflects that the accused was in formal confinement, a more serious form of restraint than custody or arrest.
Putting the categories in context
The graduated structure tracks the seriousness of the restraint involved and the manner of avoiding it. Breach of arrest, which involves exceeding the limits of a moral restraint, sits at the bottom with no punitive discharge and six months of confinement. Resisting and fleeing apprehension involve interfering with the act of being taken into custody, carrying a bad-conduct discharge and one to two years. Escape from custody and especially escape from confinement involve breaking free of actual physical restraint and carry a dishonorable discharge with confinement of one year and up to five years respectively.
Important caveats
These maximums are ceilings, not mandatory sentences; a court-martial may impose far less. The precise punishment available in any given case depends on the level of court-martial, the version of the Manual in effect at the time of the offense, and how the current sentencing-category framework in the Manual’s most recent edition applies to the charged conduct. Aggravating and mitigating factors, the accused’s record, and the circumstances of the offense all influence the actual sentence. Because the applicable framework has shifted over time and turns on the offense date, anyone facing these charges should confirm the current maximums with military defense counsel using the Manual edition that governs their case.
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.