UCMJ Article 87a: Resistance, Flight, Breach of Arrest, and Escape
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Every offense in Article 87a authorizes a punitive discharge. Resisting or fleeing apprehension carries a bad-conduct discharge and 1 year of confinement; breaking arrest, a bad-conduct discharge and 6 months; escape from custody or pretrial confinement, a dishonorable discharge and 1 year; escape from confinement imposed by a court-martial sentence, a dishonorable discharge and 5 years. And none of them can be proved if the apprehension, arrest, custody, or confinement was illegal.
What § 887a prohibits
Under 10 U.S.C. § 887a, any person subject to the UCMJ who “resists apprehension,” “flees from apprehension,” “breaks arrest,” or “escapes from custody or confinement” shall be punished as a court-martial may direct.
Before January 1, 2019, these offenses were Article 95. The Military Justice Act of 2016 (Pub. L. 114-328, § 5401) renumbered them as Article 87a. Article 95 now covers offenses by a sentinel or lookout.
Five offenses and what each requires
The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 12.b, separates the article into five offenses:
| Offense | Restraint involved | Act |
|---|---|---|
| Resisting apprehension | An authorized person attempted to take the accused into custody | Active resistance |
| Flight from apprehension | Same | Active flight, such as running or driving away |
| Breaking arrest | An authorized person ordered the accused into arrest | Going beyond the limits of arrest before release by proper authority |
| Escape from custody | An authorized person apprehended the accused | Freeing oneself from custody before release by proper authority |
| Escape from confinement | An authorized person ordered the accused into confinement | Freeing oneself from confinement before release; for the higher maximum, the confinement resulted from a court-martial conviction |
The distinctions that decide the charge
Resistance must be active. The Manual’s example is assaulting the person attempting the apprehension. “Mere words of opposition, argument, or abuse,” and attempts to escape after the apprehension is complete, are not resisting apprehension, though they may be other offenses (¶ 12.c(1)(c)).
A mistake about authority is a defense; a belief that the apprehension is groundless is not. It is a defense that the accused reasonably believed the person attempting the apprehension had no authority to do so. Believing there was no basis for the apprehension is not a defense (¶ 12.c(1)(d)).
Arrest is a restraint by orders, not by walls. The Manual recognizes two kinds: pretrial arrest under Article 9 and arrest imposed under Article 15. In both, the restraint is “moral restraint imposed by orders fixing the limits of arrest,” and crossing those limits is the offense. “The reason for the infringement is immaterial,” and innocence of the underlying offense is not a defense (¶ 12.c(3)).
Custody and confinement are different. Custody is temporary restraint following a lawful apprehension, lasting until arrest, restriction, or confinement is imposed or the person is released. Confinement is physical restraint imposed under R.C.M. 305 or 1102 or as nonjudicial punishment (¶ 12.c(4)-(5)).
When an escape is complete. An escape may be with or without force, and even with the custodian’s consent; but a prisoner released by someone with apparent authority to release cannot be convicted of escape. The escape is not complete until the prisoner is at least momentarily free; if the attempt is opposed, or an immediate pursuit follows, there is no escape until the opposition is overcome or the pursuit eluded. A prisoner escorted outside the facility by a guard with the duty and means to prevent escape remains in confinement (¶ 12.c(5)(c)-(d)).
Illegality defeats every offense. For each of the five offenses, the Manual states that a person may not be convicted if the apprehension, arrest, custody, or confinement was illegal. An apprehension, arrest, or confinement ordered by an authorized person is presumed lawful absent evidence to the contrary, and legality is ordinarily a question of law for the military judge. An illegal apprehension may still leave other charges, such as assault, depending on what the accused did.
Six months to five years, every tier with a discharge
From ¶ 12.d:
| Offense | Maximum |
|---|---|
| Resisting apprehension | Bad-conduct discharge, forfeiture of all pay and allowances, 1 year |
| Flight from apprehension | Bad-conduct discharge, forfeiture of all pay and allowances, 1 year |
| Breaking arrest | Bad-conduct discharge, forfeiture of all pay and allowances, 6 months |
| Escape from custody, pretrial confinement, or confinement under Article 15 | Dishonorable discharge, forfeiture of all pay and allowances, 1 year |
| Escape from post-trial confinement | Dishonorable discharge, forfeiture of all pay and allowances, 5 years |
The 5-year tier applies only to confinement imposed under an adjudged court-martial sentence, not to pretrial restraint or nonjudicial punishment (¶ 12.c(5)(a)).
Restriction, the custodian, and the time limit
Breaking restriction, a lesser restraint than arrest, and escaping correctional custody are charged under Article 87b. The custodian who releases a prisoner or allows an escape is charged under Article 96, release of prisoner without authority. Time spent fleeing from justice does not count toward the statute of limitations (10 U.S.C. § 843(c)).
Sources
- 10 U.S.C. § 887a, Article 87a, Resistance, flight, breach of arrest, and escape (Cornell LII)
- 10 U.S.C. § 843, Article 43, Statute of limitations (Cornell LII)
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 12
General information about military law, not legal advice for any individual case.