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.
Article 87a packs four separate offenses into one statute, and the gap between the lightest and heaviest is enormous. Breaking arrest carries a maximum of six months’ confinement. Escape from confinement carries five years and a dishonorable discharge. Same article number, same statutory language structure, vastly different consequences. The variable that drives the disparity is a concept civilian law does not emphasize the same way: the degree of restraint the accused was under when the offense occurred.
The statute (10 U.S.C. § 887a) was formerly Article 95 before the Military Justice Act of 2016 renumbered it as part of a broader reorganization of the punitive articles, effective January 1, 2019. The substantive law did not change, the offenses, elements, and punishment framework carried over intact. What changed was the statutory address and the creation of a companion provision, Article 87b, which now separately covers offenses against correctional custody and restriction.
The Restraint Ladder and Why It Matters
Military law distinguishes four levels of restraint, and each maps to a different Article 87a offense. Understanding the hierarchy is essential because the prosecution must prove not only that the accused acted against the restraint, but that the restraint itself was lawful and properly imposed. The MCM 2024 (Part IV, Paragraph 12a) sets out the elements for each of the three offense types under Article 87a, each requiring proof that the underlying authority was lawfully exercised.
Apprehension
is the military equivalent of civilian arrest, the act of taking a person into custody. Article 7 of the UCMJ authorizes apprehension by commissioned officers, warrant officers, petty officers, noncommissioned officers, military police, and other persons designated by regulation. The authority to apprehend is broad, but it must exist at the moment of the act. A service member who resists or flees from someone who lacks apprehension authority has not committed an Article 87a offense, regardless of how the situation looks afterward.
Arrest
in military law is not physical custody. It is moral restraint, a directive imposing limits on the accused’s movement, typically restricting them to specified areas such as quarters or a defined portion of an installation. The accused remains physically free but legally bound to stay within those limits. Breaking arrest means crossing those limits before being properly released. The arrest must be imposed by competent authority; the accused must know the limits; and the accused must go beyond them.
Custody
involves physical restraint, the accused is physically held, though not necessarily in a confinement facility. This is a step beyond arrest: the person is not merely directed to stay somewhere but is physically prevented from leaving.
Confinement
is the most restrictive, physical restraint in a correctional facility or designated confinement space. Pretrial confinement, post-trial confinement, and confinement pursuant to an Article 15 punishment all count. Escape from confinement is the most severely punished Article 87a offense because it represents the most direct challenge to military authority, the accused was in the highest form of restraint and overcame it.
The punishment escalation tracks this hierarchy precisely. Resisting or fleeing apprehension: bad-conduct discharge, total forfeiture, up to one year. Breaking arrest: bad-conduct discharge, total forfeiture, six months. Escape from custody: dishonorable discharge, total forfeiture, one year. Escape from confinement: dishonorable discharge, total forfeiture, five years. The jump from BCD to DD at the custody level, and the jump to five years at the confinement level, reflect the military’s view that the seriousness of the offense increases with the formality and physical nature of the restraint that was violated.
When Does Resistance Become a Crime?
Not every physical interaction during apprehension constitutes resistance. The MCM distinguishes between active resistance, using force or physical opposition to prevent or hinder the apprehension, and mere reluctance or verbal protest. A service member who says “this is wrong” or “I didn’t do anything” while being apprehended is not resisting. A service member who pulls away, strikes the apprehending person, or physically blocks them is.
Flight is simpler in concept but harder in application. The accused must have actually fled, running, driving away, hiding to avoid the apprehension. But the prosecution must also prove that the apprehension was in progress. A service member who leaves their quarters because they suspect someone might come looking for them has not fled from apprehension, no apprehension was being attempted at that point. The timing matters. Flight from anticipated apprehension is not the same as flight from actual apprehension, though the former might generate charges under Article 86 (AWOL) instead.
The legality threshold applies uniformly. If the apprehension was unauthorized, the person attempting it lacked the authority, or the circumstances did not support it, the resistance or flight is not criminal under Article 87a. This does not mean the service member’s belief about legality controls the outcome. An honest but unreasonable belief that the apprehension was unlawful is generally not a defense under military case law. The apprehension must have been actually unauthorized for the defense to succeed.
The Charge Stacking Problem
Article 87a offenses rarely stand alone. They are almost always charged alongside the underlying offense that prompted the apprehension, arrest, or confinement in the first place.
A service member charged with assault (Article 128) who then resists apprehension faces both charges. A service member convicted at court-martial and sentenced to confinement who then escapes faces the original offense plus escape from confinement. Article 87a punishment stacks on top of whatever the underlying offense carries, and the two run consecutively in practice even though the UCMJ does not mandate consecutive sentencing.
This creates a compounding dynamic. The service member is punished for the original misconduct and then punished again for how they responded to the military justice system’s attempt to process that misconduct. From the prosecution’s perspective, this is justified: the offenses are analytically distinct, and each violates a separate duty. From the defense’s perspective, it is a leverage tool, the additional charges increase exposure and pressure plea negotiations.
The stacking also intersects with Article 86 (AWOL) and Article 85 (desertion). A service member who breaks arrest and then fails to return has committed both a breach of arrest under Article 87a and an unauthorized absence under Article 86. If the absence extends with the intent to remain away permanently, desertion under Article 85 enters the picture. Three separate charges, one continuous course of conduct, but each offense has distinct elements and each must be proven independently.
Four Offenses, One Principle
Despite the variation in punishment and elements, Article 87a rests on a single principle: the military justice system’s authority to restrain, detain, and confine must be respected even when the service member disagrees with its application. The offense is not about the underlying conduct, it is about the response to lawful authority.
This makes the legality of the restraint the most important factual and legal question in any Article 87a case. If the apprehension was unauthorized, there is no offense. If the arrest was imposed by someone lacking authority, the breach is not criminal. If the confinement was unlawful, imposed without proper authorization or in violation of the accused’s rights under Article 13 (prohibition against pretrial punishment). the escape may not constitute an Article 87a violation.
The elements across all four offenses share this structure:
For resisting apprehension: someone attempted to apprehend the accused; that person was authorized to do so; the accused actively resisted.
For flight from apprehension: someone attempted to apprehend the accused; that person was authorized to do so; the accused fled.
For breaking arrest: the accused was in arrest imposed by competent authority; the accused went beyond the limits before being released by proper authority.
For escape from custody or confinement: the accused was in lawful custody or confinement; the accused freed themselves before being released by proper authority.
In every case, the prosecution’s burden begins with establishing that the authority exercised over the accused was legitimate. The accused’s action against that authority follows. Remove the first element, and the second is not criminal. This is why defense counsel in Article 87a cases so frequently attack the lawfulness of the underlying restraint, it is the foundation on which everything else rests, and if it falls, the charge falls with it.
Joseph L. Jordan, Attorney at Law: Article 87a consolidates four offenses into one statute: resisting apprehension, flight from apprehension, breach of arrest, and escape from confinement. Maximum punishment ranges from six months for breaking arrest to five years and a dishonorable discharge for escape from confinement.
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.