UCMJ Article 87b: Offenses Against Correctional Custody

Correctional custody is one of the milder tools a commander can use to discipline a service member without a court-martial. It restricts liberty, imposes supervision, and assigns duties, but it stops short of confinement in a brig. The system only works if the person under it stays within its limits. Article 87b of the Uniform Code of Military Justice, codified at 10 U.S.C. 887b, punishes those who break out of that restraint or step beyond the boundaries set for them.

Article 87b is titled “Offenses against correctional custody and restriction.” It collects three distinct offenses into one article: escape from correctional custody, breach of correctional custody, and breach of restriction. Each addresses a different way of defeating a restraint short of formal confinement.

A note on numbering helps orient readers and lawyers working from older materials. These offenses were once charged under the old Article 134 general article. The Military Justice Act of 2016, effective 1 January 2019, relocated them into the freestanding Article 87b. Citations that still place breach of correctional custody or restriction-breaking under Article 134 reflect the pre-2019 scheme.

The three offenses and their elements

Escape from correctional custody. The prosecution must prove:

  1. That the accused was placed in correctional custody by a person authorized to do so.
  2. That, while in correctional custody, the accused was under physical restraint.
  3. That the accused escaped from the physical restraint before being released by proper authority.

Breach of correctional custody. The prosecution must prove:

  1. That the accused was placed in correctional custody by a person authorized to do so.
  2. That, while in correctional custody, the accused was under a restraint other than physical restraint.
  3. That the accused went beyond the limits of that restraint before being released or relieved by proper authority.

Breach of restriction. The prosecution must prove:

  1. That the accused was ordered to be restricted to certain limits by a person authorized to do so.
  2. That the accused, with knowledge of the limits of the restriction, went beyond those limits before being released by proper authority.

The dividing line between escape and breach of correctional custody is the nature of the restraint. Escape involves casting off actual physical restraint. Breach involves exceeding a non-physical restraint, such as the conditions or boundaries of the custody, without any physical barrier to overcome.

What the government must prove in practice

Two themes run through all three offenses. The first is lawful imposition. The custody or restriction must have been ordered by a person with authority to impose it. If the restraint was imposed without proper authority, the foundation of the charge collapses, because the accused cannot be punished for breaking a restraint that was never lawfully in place.

The second is the boundary itself, and for breach of restriction, knowledge of it. Breach of restriction expressly requires that the accused knew the limits and then went beyond them. The government must prove the accused understood where the line was and crossed it anyway. For escape and breach of correctional custody, the focus is on whether the accused was in fact under the relevant restraint and left it before proper release.

Maximum punishment

For offenses committed before 27 December 2023, the maximums differ sharply across the three offenses, tracking their seriousness:

  • Escape from correctional custody: dishonorable discharge, forfeiture of all pay and allowances, and confinement for one year.
  • Breach of correctional custody: bad-conduct discharge, forfeiture of all pay and allowances, and confinement for six months.
  • Breach of restriction: forfeiture of two-thirds pay per month for one month and confinement for one month. This offense alone does not carry a punitive discharge as a maximum.

For offenses committed on or after 27 December 2023, sentencing follows the judge-alone framework introduced by the Fiscal Year 2022 National Defense Authorization Act, with confinement set within the applicable statutory category. The relative ordering of the three offenses by severity continues to reflect the differences above.

Defenses

The most fundamental defense is that the custody or restriction was not lawfully imposed, which negates an essential element of every Article 87b offense. For breach of restriction, lack of knowledge of the limits is a direct defense, because the offense requires that the accused knew the boundary. Duress or necessity may apply where the accused left the restraint to avoid a greater and imminent harm. The defense may also contest the proof of the restraint’s existence, the boundary, or the act of leaving it, and may argue that any departure occurred only after proper release.

Distinctions from neighboring offenses

Article 87b should not be confused with the broader escape offenses in Article 87a, which addresses resistance, flight, breach of arrest, and escape from custody or confinement following apprehension. Article 87b is narrower, reaching the specific restraints of correctional custody and ordered restriction rather than arrest or post-conviction confinement.

Conduct during an escape can support additional charges. Assaulting a guard may be charged as assault under Article 128, and disobeying a lawful order tied to the custody may be charged under Article 92, in addition to the Article 87b offense. Because the elements differ, a single episode can yield multiple charges. Helping another service member escape may expose the helper to liability as a principal under Article 77 or to a separate offense, depending on the facts.

Frequently asked questions

What is correctional custody?
It is a form of nonjudicial punishment that restricts a service member’s liberty and imposes supervision and duties, without amounting to confinement in a brig. It is a low-level disciplinary measure, typically imposed under Article 15.

What separates escape from breach of correctional custody?
The restraint. Escape involves casting off physical restraint. Breach involves exceeding a non-physical restraint, such as the conditions or boundaries of the custody, with no physical barrier to defeat.

Does breach of restriction require knowledge of the limits?
Yes. The accused must have known the limits of the restriction and gone beyond them. Genuine lack of knowledge is a defense.

What if the custody was not lawfully imposed?
Lawful imposition by a person with authority is an essential element of every Article 87b offense. If it is missing, the charge fails.

Which of the three is most serious?
For offenses before 27 December 2023, escape from correctional custody carries the highest maximum, up to a dishonorable discharge and one year of confinement. Breach of restriction is the least serious and carries no punitive discharge.

Sources

10 U.S.C. 887b (Article 87b): https://www.law.cornell.edu/uscode/text/10/887b
Manual for Courts-Martial, United States (2024 edition), Part IV: https://jsc.defense.gov/Military-Law/Current-Publications-and-Updates/
U.S. Court of Appeals for the Armed Forces: https://www.armfor.uscourts.gov/

Military Attorney Joseph L. Jordan, Articles of the UCMJ

This article is for general informational purposes only and is not legal advice. It describes military law and procedure of public record, does not address any individual case, and does not create an attorney-client relationship.

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