A charge under Article 87a, UCMJ, is serious. Depending on the situation, it may involve allegations of resisting apprehension, fleeing from apprehension, breaking arrest, or escaping from custody or confinement. These cases can put a service member's career, pay, and freedom at risk. This article breaks down what Article 87a, UCMJ, covers, what the government has to prove, and why the details matter so much.
If you are under investigation or have already been charged with resisting or breaking arrest, it’s critical to speak with experienced military defense counsel as early as possible. Contact MJA today for a free consultation.
Article 87a, UCMJ, codified at 10 U.S.C. § 887a, covers several related offenses involving resistance to lawful military control or attempts to get away from it. In general, it applies when a person subject to the UCMJ is accused of:
resisting apprehension,
fleeing from apprehension,
breaking arrest, or
escaping from custody or confinement.
These are related offenses, but they are not all the same. Each one has its own elements, and the facts matter.
The answer depends on what kind of misconduct is being alleged.
To prove resisting apprehension, the government generally has to show that someone tried to apprehend the accused, that the person had authority to do so, and that the accused actively resisted.
That word "actively" matters. Complaining, arguing, or using abusive language alone usually is not enough. The conduct has to be more direct, such as physically struggling against the attempt to apprehend.
To prove flight from apprehension, the government generally has to show that someone tried to apprehend the accused, that the person had authority to do so, and that the accused fled.
The flight has to be active—for example, running away or driving away.
To prove breaking arrest, the government generally has to show that the accused was ordered into arrest by someone with authority to impose that restraint, and that the accused went beyond the limits of that arrest before being properly released.
Here, "arrest" does not necessarily mean what most civilians think of as a physical arrest by police. Under military law, arrest can mean being ordered to stay within certain limits. Breaking arrest happens when the person goes beyond those limits.
To prove escape from custody, the government generally has to show that the accused was apprehended by someone authorized to apprehend them, and that the accused freed himself or herself from custody before being released by proper authority.
To prove escape from confinement, the government generally has to show that the accused was ordered into confinement by someone authorized to impose it, and that the accused freed himself or herself from confinement before being released by proper authority.
If the alleged escape was from post-trial confinement, the government also has to prove that the confinement resulted from a court-martial conviction.
One of the biggest issues in Article 87a, UCMJ, cases is whether the person trying to apprehend, arrest, or confine the accused had legal authority to do so.
That matters because a person generally cannot be convicted of resisting apprehension if the attempted apprehension was illegal. The same basic idea applies to breaking arrest and to escape from custody or confinement. If the underlying restraint was illegal, that can matter in a big way.
At the same time, military law generally starts with the presumption that apprehension, arrest, custody, and confinement are lawful when imposed by someone authorized to do so, unless there is evidence showing otherwise.
Maybe, depending on the facts.
In resisting apprehension cases, it may be a defense if the accused reasonably believed the person trying to apprehend them did not have authority to do so. But that is different from simply believing there was no good reason for the apprehension. In other words, believing the apprehension was unfair is usually not enough by itself.
That distinction can matter under Article 87a, UCMJ.
Custody is usually temporary restraint on a person's freedom of movement after lawful apprehension. It may be physical, or it may exist through official control once the person has submitted to apprehension or has been taken into custody.
Confinement is a more formal physical restraint imposed under the applicable military rules and procedures. For purposes of the enhanced post-trial escape provision, the confinement must come from an adjudged sentence at court-martial rather than pretrial restraint or nonjudicial punishment.
Under Article 87a, UCMJ, an escape does not require force or trickery. It can happen with or without force, with or without deception, and with or without the custodian's consent. But the offense is not complete until the prisoner is at least momentarily free from the restraint.
If the movement toward escape is immediately stopped, or if immediate pursuit prevents the person from actually getting free, the escape may not be complete. That is why the timing and sequence of events can matter so much.
A prisoner also does not automatically stop being in confinement just because they are outside the confinement facility for a limited reason. If they are being escorted and the guard has both the duty and the ability to prevent escape, they generally remain in confinement.
The maximum punishment depends on the type of alleged conduct:
Resisting apprehension: bad-conduct discharge, forfeiture of all pay and allowances, and confinement for up to 1 year
Flight from apprehension: bad-conduct discharge, forfeiture of all pay and allowances, and confinement for up to 1 year
Breaking arrest: bad-conduct discharge, forfeiture of all pay and allowances, and confinement for up to 6 months
Escape from custody, pretrial confinement, or confinement pursuant to Article 15: dishonorable discharge, forfeiture of all pay and allowances, and confinement for up to 1 year
Escape from post-trial confinement: dishonorable discharge, forfeiture of all pay and allowances, and confinement for up to 5 years
In general, escape-related allegations—especially those involving post-trial confinement—carry serious punishment exposure under Article 87a, UCMJ.
Charges under Article 87a, UCMJ, can sound straightforward at first, but they often raise important factual and legal questions. Those questions may include whether the person attempting to apprehend or restrain the accused had legal authority, whether the restraint was lawful, whether the accused's conduct was active enough to count as resistance or flight, whether the limits of arrest were clearly imposed, and whether an alleged escape was actually completed.
Because these cases can create both criminal and administrative consequences, early legal review matters. In addition to the risk of court-martial punishment, a service member may face long-term professional and personal consequences affecting future service and civilian opportunities.
Article 87a, UCMJ, covers several different offenses, but they all focus on one general issue: alleged resistance to lawful military control or restraint. Whether the allegation involves apprehension, arrest, custody, or confinement, the key questions usually involve authority, lawfulness, and exactly what happened.
If you are being investigated or charged under Article 87a, UCMJ, understanding those distinctions early can matter. Military Justice Attorneys helps service members evaluate these allegations, understand their options, and respond strategically at the earliest stages of an investigation or case.
Our decentralized approach to military defense ensures that we can represent service members from any branch of the military, of any rank, at any military base or installation stateside or abroad.
Available 24/7 to Help Anyone in the World
(843) 755-6535