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?
Any service member employed by the United States who resists or flees lawful apprehension, breaches arrest, or escapes from 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. Other Article 87a offenses have lower maxima; additional punishment is not automatic.
- 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
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.
Summary of the Elements of Article 87a: Article 87a addresses resistance to apprehension, flight, breach of arrest, escape from custody, and escape from confinement. These situations can arise before trial as well as after conviction. Each offense has its own requirements concerning the authority involved, the restraint imposed, and the accused’s conduct.
Sentencing Guidelines
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.
Breaking arrest has a six-month maximum, so its Category 1 range cannot extend to twelve months. Escape from post-trial confinement is Category 2 (1–36 months) despite its five-year maximum; the remaining listed offenses are Category 1.
Offenses Under
This Article
Offense Category
Category Confinement Range (Months)
Resistance, flight, breach of arrest, and escape (Resisting apprehension)
Category 1
0-12
Resistance, flight, breach of arrest, and escape (Flight from apprehension)
Category 1
0-12
Resistance, flight, breach of arrest, and escape (Breaking arrest)
Category 1
0-12
Resistance, flight, breach of arrest, and escape: Escape from custody, pretrial confinement, or confinement pursuant to Article 15
Category 1
0-12
Resistance, flight, breach of arrest, and escape (Escape from post-trial confinement)
Category 2
1-36
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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. Some of the questions we’ll consider to construct that strategy include:
- At the time of the apprehension, did you doubt the person’s authority to legally apprehend you and did a struggle ensue to defend yourself? It is defensible for a service member to avoid arrest if he or she was not aware that the individual performing the arrest had the legal authority to do so.
- Was the apprehension or restraint lawful? Who imposed it, what authority did that person have, and what actually happened? A filed warrant is not required for every military apprehension. We examine the applicable authority, orders, and circumstances instead of assuming that missing paperwork settles the issue.
Experienced Military Defense Lawyers for Article 87a Charges
Contact Bilecki Law GroupTake 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:
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.
Bilecki Law Group will help you fight back against charges under Article 87a: Resistance, Flight, Breach of Arrest and Escape
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. An emergency does not automatically authorize you to leave the limits of arrest. It does require a careful look at the orders, available alternatives, any legal defense raised by the circumstances, and mitigation. Those facts can matter even when the government can prove you crossed the stated limits.
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. Reduction in grade applies to enlisted members.
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