Resistance, flight, breach of arrest, and escape moved from Article 95 to Article 87a for conduct governed by the changes effective 1 January 2019. The discussion below identifies the current Article 87a offenses. Current Article 95 concerns offenses by a sentinel or lookout; earlier conduct must be assessed under the law applicable on its date.
At Bilecki Law Group, We believe every service member has earned their right to an aggressive defense on their day in court. We specialize in taking the fight to the prosecution and winning cases that others said were unwinnable.
What Is Article 87a Of The UCMJ?
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Any service member employed by the United States who resists a legally authorized apprehension or escapes from post-trial custody or confinement may face charges under Article 87a of the UCMJ. An additional conviction can increase punishment exposure, subject to the offenses actually proved and the rules governing multiplicity, concurrent or consecutive confinement, and court-martial jurisdiction. In addition to those charges you may also face:
- Escape from post-trial confinement carries a maximum of five years of confinement. The other offenses described below carry lower maximum punishments.
- The forfeiture of all pay and allowances, simply for resisting a person who you believed at the time to have no authority to arrest you.
- A dishonorable or bad-conduct discharge, which could impact your civilian career and force you to closet your military service for the rest of your life.
Do not allow the government to add insult to injury by leveling even more charges against you. Contact Bilecki Law Group immediately to learn about your options and start fighting back!
Defining Article 87a of the UCMJ
The threat to your military career and civilian future is both clear and present. You may be facing:
Every punitive article of the UCMJ requires prosecutors to prove beyond a reasonable doubt a handful of critical assumptions, known as elements, to convict you of a crime. Article 87a describes five specific criminal acts and the elements that must be proven to convict a service member of each.
- Resisting apprehension
- That a certain person attempted to apprehend the accused;
- That said person was authorized to apprehend the accused; and
- That the accused actively resisted the apprehension
- Flight from apprehension
- That a certain person attempted to apprehend the accused;
- That said person was authorized to apprehend the accused; and
- That the accused fled from apprehension
- Breaking arrest
- That a certain person ordered the accused into arrest;
- That said person was authorized to order the accused into arrest; and
- That the accused went beyond the limits of arrest before being released from that arrest by proper authority.
- Escape from custody
- That a certain person apprehended the accused;
- That said person was authorized to apprehend the accused; and
- That the accused freed himself or herself from custody before being released by proper authority.
- Escape from confinement
- That a certain person ordered the accused into confinement;
- That said person was authorized to order the accused into confinement; and
- That the accused freed himself or herself from confinement before being released by proper authority.
Article 87a addresses resisting or fleeing lawful apprehension, breaking arrest, escape from custody, and escape from confinement. These situations can arise before trial as well as after conviction; the government must prove the requirements of the particular offense.
Military Defense Attorney for Article 87a of the UCMJ: Strategies and Tactics
A proper defense for Article 87a typically revolves around three core concepts:
- Legal authority by the government to apprehend;
- Confusion by the accused over the authority of the apprehenders to arrest him or her;
- The definition of what constitutes resistance, avoidance, and escape.
We’ll consider all three options before we create a strategy for your case.
You may already be facing criminal accusations. Do not allow the government to add insult to injury with more heavy-handed or baseless accusations. Contact Bilecki Law Group TODAY for an immediate consultation into your case.
Experienced Military Defense Lawyers for Article 87a Charges
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Take the stress and the unknowns out of your court-martial or administrative hearing. The experienced military defense attorneys at Bilecki Law Group have been aggressively defending service members from Article 87a charges for years.
Here are just a few of the stunning upsets by the defense attorneys at Bilecki Law Group: Bilecki Law Group will help you fight back against charges under Article 87a: Resistance, Flight, Breach of Arrest and Escape
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Frequently Asked Questions About Article 87a
What Does Breaking Arrest Mean?
According to the UCMJ, breaking arrest means infringing upon the limits set by orders or legitimate law enforcement or a judge. In other words, if you are under arrest to quarters and you leave your quarters for any reason, you could be charged with breaking arrest. The reason for breaking the arrest typically has no bearing on the case. If you are asked to remain where you are by a legal authority, and then receive an emergency call that requires your attention at a hospital, you would still be breaking arrest and be subject to sentencing.
What Is the Maximum Possible Punishment for Article 87a: Resistance, Flight, Breach of Arrest, and Escape?
Each criminal offense under Article 87a carries with it its own maximum offense. From most to least serious: Escape from post-trial confinement
- Reduction to E-1
- Forfeiture of all pay and allowances
- Confinement for 5 years
- Dishonorable discharge
Resisting or fleeing apprehension: a bad-conduct discharge, forfeiture of all pay and allowances, and one year of confinement.
Breaking arrest: a bad-conduct discharge, forfeiture of all pay and allowances, and six months of confinement.
Escape from custody, pretrial confinement, or confinement imposed under Article 15: a dishonorable discharge, forfeiture of all pay and allowances, and one year of confinement.
Escape from post-trial confinement: a dishonorable discharge, forfeiture of all pay and allowances, and five years of confinement.
All are Category 1 (0–12 months), except post-trial escape, which is Category 2 (1–36 months). The six-month maximum for breaking arrest limits its Category 1 range.
For noncapital general and special courts-martial, the sentencing parameter system applies when every offense of conviction occurred on or after 28 December 2023. The military judge must sentence within the applicable confinement range unless specific facts justify a departure. If the judge departs, the record must contain a written statement explaining the factual basis. These ranges do not replace the lawful maximum punishment for the offense or the court-martial’s jurisdictional limits. For offenses assigned sentencing criteria instead of a category, the judge must consider those criteria.
The punishment summaries describe the current offense limits for enlisted members; earlier conduct must be assessed under the law applicable on its date. Reduction to E-1 applies to enlisted members. Dismissal applies to commissioned officers, including commissioned warrant officers, cadets, and midshipmen. A dishonorable discharge applies to enlisted members and uncommissioned warrant officers; a bad-conduct discharge applies only to enlisted members. Court-martial jurisdiction and any plea agreement can further limit the sentence.