This article is part of a comprehensive series covering the punitive articles of the UCMJ (Uniform Code of Military Justice). It is intended for informational purposes only and does not constitute legal advice. Service members facing any UCMJ charge should consult a qualified military defense attorney.
A staff sergeant runs a training unit. One of his soldiers misses formation. Convinced the soldier was out drinking the night before, the sergeant orders two junior NCOs to find him, bring him back, and hold him in a supply room until the sergeant “decides what to do.” No confinement order exists. No commander authorized the detention. The soldier spends four hours locked in that room before anyone in the chain of command finds out.
That sergeant just committed unlawful detention under Article 97. Not because his frustration was unjustified, the soldier probably did miss formation, but because the authority to confine another service member doesn’t belong to whoever happens to be angry enough to exercise it.
Apprehension, Arrest, and Confinement
Article 97 (10 U.S.C. § 897) covers three distinct forms of restraint: apprehension, arrest, and confinement. Each carries a specific legal meaning the UCMJ defines carefully. The MCM 2024 (Part IV, Paragraph 22) specifies the elements: the accused arrested or imprisoned a person, the arrest or imprisonment was unlawful, and the accused knew or should have known it was unlawful.
Apprehension restricts a person’s liberty by taking them into custody. In military practice, it functions like a civilian arrest, physically directing someone to come with you. Arrest imposes moral restraint through verbal or written orders, directing the person to remain within specified boundaries. No physical force required; the order itself creates the restriction. Confinement goes further, physical restraint under guard, in a cell, or in any facility designed for that purpose.
Article 97 doesn’t prohibit these actions. Military operations require all three. What Article 97 prohibits is performing any of them “except as provided by law.” The statute text is one sentence: “Any person subject to this chapter who, except as provided by law, apprehends, arrests, or confines any person shall be punished as a court-martial may direct.”
The phrase “except as provided by law” does the heavy lifting. It means the authority to apprehend, arrest, and confine exists, but it’s granted to specific people under specific circumstances, not available to everyone who thinks the situation warrants it.
Who Has the Authority and When It Breaks
The UCMJ and Rules for Courts-Martial establish clear lines. Commissioned officers, warrant officers, petty officers, NCOs, and military police or security forces may apprehend persons subject to the code when they have reasonable belief that an offense has been committed. Commanders may order arrest. Confinement requires specific authorization, typically from the commander who convened the court-martial or an officer exercising general court-martial jurisdiction.
Article 97 charges arise at two friction points. The first: someone with general authority to apprehend or arrest exercises that authority without the specific legal basis required for this particular person in this particular situation. The staff sergeant in the opening scenario has authority to give orders to subordinates, but ordering someone locked in a room without confinement authorization crosses from command authority into unlawful detention.
The second friction point: the restraint continues beyond its lawful basis. An apprehension that was initially lawful becomes unlawful detention if the person isn’t promptly delivered to the proper authority. Under the MCM, anyone making an apprehension must maintain custody and inform the immediate commander of the apprehended person as promptly as possible.
One critical limitation: Article 97 applies only to persons who have some authority to apprehend, arrest, or confine under the UCMJ. A private who locks another private in a room isn’t charged under Article 97; that is assault or a violation of Article 134. Article 97 specifically targets the abuse of military justice authority, not private acts of false imprisonment.
The Reasonable Belief Defense
The MCM recognizes that military detention decisions happen fast, often under pressure, and sometimes with incomplete information. The prosecution must prove not just that the detention was unlawful, but that the accused didn’t have a reasonable belief that the restraint was lawful.
This creates the primary defense battleground. If a military police officer apprehends someone based on information from a watch commander that later turns out to be wrong, the apprehension may have been objectively unlawful, but the MP’s reasonable belief in its lawfulness defeats an Article 97 charge. The question isn’t whether the detention was correct. It’s whether the person exercising authority had grounds to believe they were acting within that authority.
The reasonable belief defense doesn’t protect willful abuse. Confining someone for personal punishment, holding someone past the point where you know the legal basis has evaporated, or detaining someone you know you have no authority over, none of these survive the reasonable belief standard.
Where Article 97 Fits in the Custodial Framework
Article 97 completes the custodial cluster that began with Articles 95 and 96. The UCMJ addresses military detention from every angle: Article 95 punishes sentinels who fail their security function. Article 96 punishes custodians who release prisoners or allow escape through neglect or design. Article 97 punishes the abuse of detention authority itself, the person who puts someone in restraint without legal basis.
Together, these articles define the boundaries of legitimate military custody. The system works only if sentinels guard properly (Article 95), custodians maintain custody properly (Article 96), and the authority to detain is exercised properly (Article 97). Remove any piece, and the entire detention framework loses integrity.
The maximum punishment reflects this seriousness: dishonorable discharge, forfeiture of all pay and allowances, and three years of confinement. For what might begin as a frustrated NCO making a bad judgment call, the consequences are career-ending.
Does Article 97 apply when someone with no UCMJ authority at all restrains another person? No. Article 97 specifically targets those who have some military authority to apprehend, arrest, or confine, and then exercise that authority unlawfully. A service member who imprisons another without any claim to military authority faces charges under Article 128 (assault) or Article 134, not Article 97. The distinction matters because Article 97 isn’t about violence or imprisonment in general. It’s about the abuse of power the military justice system specifically grants.
Joseph L. Jordan, Attorney at Law: Article 97 prohibits the unlawful apprehension, arrest, or confinement of any person. The authority to restrain another service member is limited to specific individuals under specific circumstances, and exercising that authority without legal basis is a criminal offense under this article.
This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is created by reading this content. If you are facing charges under the UCMJ or need legal guidance regarding military justice matters, consult a qualified military defense attorney.