UCMJ Article 87b: Offenses Against Correctional Custody and Restriction

Article 87b gathers three related offenses into a single provision: escaping from correctional custody, breaching correctional custody, and breaking restriction. What ties them together is not the conduct itself but the thing being defied. Each offense punishes a service member for slipping out of a low-level form of restraint that a commander or a court-martial imposed as a consequence of earlier misconduct. The wrong is the defiance of an authorized restraint, charged separately from whatever the member did to earn the restraint in the first place.

These offenses were not always grouped this way. Until the punitive articles were restructured, breach of correctional custody and breaking restriction were prosecuted as enumerated offenses under the general article, Article 134, with their wrongfulness tied to the terminal element of prejudice to good order and discipline or service discredit. The Military Justice Act of 2016 pulled them out of Article 134 and placed them in a dedicated provision, codified at 10 U.S.C. 887b, effective 1 January 2019. The relocation gave the conduct a fixed article number and a self-contained set of elements, so the government no longer has to plead the offense through the general article.

How the statute is organized

The statute is built in three subsections, each describing a distinct offense. Subsection (a) addresses escape from correctional custody, which applies when a member is under physical restraint and breaks free of it before being released by proper authority. Subsection (b) addresses breach of correctional custody, which applies when the member is in correctional custody but under a restraint other than physical restraint and goes beyond the limits of that restraint. Subsection (c) addresses breach of restriction, which applies when a member ordered to stay within certain limits, knowing those limits, goes beyond them before being released.

The dividing line between the first two offenses is the nature of the restraint. Escape requires physical restraint and the act of breaking out of it. Breach of correctional custody involves correctional custody enforced by something less than physical restraint, where the violation is exceeding the assigned limits rather than breaking a physical hold. Breach of restriction is the least restrictive of the three: restriction relies entirely on the member’s compliance with an order, with no physical control at all.

Understanding correctional custody and restriction

Correctional custody and restriction are forms of restraint that fall well short of confinement in a brig or military prison. Correctional custody is a form of nonjudicial punishment available against enlisted members, and it can also be imposed by a court-martial. A member in correctional custody is held to specified limits and may be required to perform extra duties, but the setting is not incarceration; it is closer to a closely supervised duty status with restrictions attached. Restriction is even lighter. It is a moral restraint, an order directing a member to remain within stated boundaries such as the installation, the unit area, or designated buildings, enforced by the member’s obligation to obey rather than by guards or barriers.

That hierarchy of restraint explains why the three offenses carry different consequences. The more a particular form of restraint resembles actual physical custody, the more seriously the law treats a violation of it. Escape from physical restraint sits at the top, breach of non-physical correctional custody in the middle, and breaking the purely moral restraint of restriction at the bottom.

The elements the government must prove

Each subsection has its own elements, and the prosecution must establish every element of the charged offense beyond a reasonable doubt.

For escape from correctional custody, the government must prove that the accused was placed in correctional custody by a person authorized to do so, that the accused was under physical restraint while in that custody, and that the accused escaped from the physical restraint before being released by proper authority.

For breach of correctional custody, the government must prove that the accused was placed in correctional custody by a person authorized to do so, that the accused was under a restraint other than physical restraint, and that the accused went beyond the limits of that restraint before being released or relieved by proper authority.

For breach of restriction, the government must prove that a person authorized to do so ordered the accused to be restricted to certain limits, and that the accused, knowing those limits, went beyond them before being released by proper authority.

Two threads run through all three. First, the restraint must have been imposed by someone with authority, which makes the legality of the underlying restraint a built-in issue in every case. Second, the violation must occur before proper authority releases the member, so a departure that is authorized, or that follows a valid release, does not satisfy the offense.

The knowledge requirement

For breach of restriction, the statute expressly requires that the accused act “with knowledge of the limits of the restriction.” The member must have known that restriction was imposed and must have understood the boundaries that defined it. This knowledge is typically shown through the restriction order itself, an acknowledgment signed by the member, or testimony from the person who imposed it. Where the limits were never clearly communicated, or were described so vaguely that the member could not reasonably know what they were, the knowledge element becomes contestable.

The correctional custody offenses turn on the legitimacy and clarity of the custody in a similar way. The member must have been lawfully placed in custody, must have been subject to the relevant form of restraint, and must have crossed its limits. Ambiguity about where the limits lay, or about whether the member was ever properly informed of them, can undercut proof that the member knowingly went beyond them.

Maximum punishment

The maximum punishment depends on which of the three offenses is charged, and the figures track the seriousness of the restraint defied. These maxima are set by the Manual for Courts-Martial rather than by the statute, which says only that a violation “shall be punished as a court-martial may direct,” and they should be confirmed against the current Manual.

For escape from correctional custody, the maximum punishment is a dishonorable discharge, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and confinement for one year. For breach of correctional custody, the maximum is a bad-conduct discharge, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and confinement for six months. For breach of restriction, no punitive discharge is authorized; the maximum is forfeiture of two-thirds pay per month for one month and confinement for one month.

These ceilings are maximums, not expected sentences. Breaking restriction in particular is a minor offense, and in practice it is far more often handled through nonjudicial punishment or administrative measures than through a court-martial. For offenses committed on or after 27 December 2023, a military judge imposes the sentence under the sentencing parameters adopted with the Military Justice Act reforms, which is another reason to verify any specific figure against the current Manual.

Defenses and common disputes

Because each offense depends on a lawfully imposed restraint, the most direct defense is to attack the restraint itself. If the correctional custody or restriction was ordered by someone without authority, or was imposed through a defective process, then there was no valid restraint to escape, breach, or break, and the charge fails. A member who challenges the legality of the underlying nonjudicial punishment, for example, is also challenging the foundation of an Article 87b charge built on it.

Other recurring disputes focus on the limits and on authorization. A member who never crossed the established boundaries has not committed the offense, so a contest over exactly where the limits lay can be decisive. Departures that were authorized, including leaving to address a genuine emergency or to obtain needed medical treatment, fall outside the offense because they are not unauthorized breaches. Mistake about the boundaries can negate the required knowledge where the limits were genuinely unclear. And for any of the three offenses, proof that proper authority had already released the member defeats the charge, because the restraint was no longer in effect.

Article 87b should not be confused with the offenses in Article 87a, which covers resisting apprehension, fleeing from apprehension, breaking arrest, and escaping from custody or confinement. Escape from confinement and breach of arrest are Article 87a offenses and carry their own, generally harsher, treatment. The two articles draw a deliberate line: Article 87a reaches escape from arrest and from confinement, while Article 87b reaches the lighter restraints of correctional custody and restriction.

A single course of conduct can also implicate more than one article. A member who walks away from correctional custody or restriction and then stays gone may face an unauthorized-absence charge under Article 86 in addition to the Article 87b offense, because the two address different wrongs: the breach targets the defiance of the imposed restraint, while the absence targets the unauthorized departure from duty. If a prolonged absence is accompanied by an intent to remain away permanently or to avoid a particular duty, the conduct may rise to desertion under Article 85. Breaking pretrial restriction can carry an additional consequence beyond a new charge, because it can support the imposition of more restrictive conditions, including pretrial confinement, on the theory that the member cannot be trusted to comply with lesser measures.

Sources

10 U.S.C. 887b, Article 87b, Offenses against correctional custody and restriction: https://www.law.cornell.edu/uscode/text/10/887b
10 U.S.C. 887a, Article 87a, Resistance, flight, breach of arrest, and escape: https://www.law.cornell.edu/uscode/text/10/887a
Manual for Courts-Martial, United States, Part IV (Punitive Articles), Article 87b: https://jsc.defense.gov/Military-Law/Current-Publications-and-Updates/

This article is for general informational purposes only and is not legal advice. It describes military law and procedure of public record, does not address any individual case, and does not create an attorney-client relationship.