UCMJ Article 95 – Resistance, Flight, Breach of Arrest, and Escape

UCMJ Article 95 punishes service members who resist apprehension, attempt to flee from custody, break arrest, or escape from confinement. The provision ensures that military law enforcement and command authority can maintain control over personnel subject to investigation, arrest, or confinement. By criminalizing resistance and escape, Article 95 safeguards the enforcement of lawful military orders and the integrity of the justice process.

This article covers four distinct forms of misconduct: resisting apprehension, fleeing, breaching arrest, and escaping from custody or confinement. Each undermines discipline by obstructing the lawful authority of commanders and military police.

Key Elements

1. Resisting apprehension:

  • The accused resisted lawful apprehension by a person authorized to apprehend them.
  • The accused knew that the individual had authority to apprehend.

2. Flight from apprehension:

  • The accused attempted to flee or avoid being taken into custody.
  • The flight was from a lawful attempt at apprehension.

3. Breach of arrest:

  • The accused was lawfully ordered into arrest.
  • The accused broke the conditions by leaving the limits of arrest without authority.

4. Escape from custody or confinement:

  • The accused was lawfully confined, in custody, or under guard.
  • The accused escaped or attempted to escape without permission.

Scope and Application

Article 95 applies whether the misconduct occurs during investigation, pretrial restraint, or post-conviction confinement. Resisting or fleeing undermines lawful authority and can escalate into additional charges, including assault if force is used.

Breach of arrest applies when a service member under restriction leaves without authorization. Escape applies when leaving guard custody, a detention facility, or any place of lawful confinement.

Punishment

Maximum punishments vary:

  • Resisting apprehension: Confinement up to 1 year, forfeiture of pay, and bad-conduct discharge.
  • Flight from apprehension: Confinement up to 1 year, forfeiture of pay, and bad-conduct discharge.
  • Breach of arrest: Confinement up to 6 months and forfeiture of pay.
  • Escape from custody or confinement: Confinement up to 2 years, forfeiture of pay, and dishonorable discharge.

The severity depends on the nature of the offense and whether violence or aggravating factors are involved.

Defenses

Possible defenses include:

  • Unlawful apprehension: If the arrest or confinement was unlawful, resistance may not constitute an offense.
  • Lack of knowledge: If the accused did not know the person had authority to apprehend, liability may not apply.
  • Duress: Escape under immediate threat of death or serious harm may be excused in rare cases.
  • Mistake: Honest belief that orders had changed or confinement was not lawful may mitigate culpability.

Examples

If a service member resists military police trying to arrest them, Article 95 applies. If an airman flees from an investigator attempting to place them in custody, they are guilty of flight. A sailor restricted to barracks who leaves base without permission commits breach of arrest. A soldier who escapes from pretrial confinement is guilty of escape under Article 95.

Conclusion

UCMJ Article 95 protects the authority of the military justice system by punishing resistance, flight, breach of arrest, and escape. These offenses undermine order and threaten discipline, and the law ensures accountability for anyone who obstructs lawful custody. By holding service members responsible for compliance, Article 95 preserves trust in the enforcement of justice across the armed forces.

Frequently Asked Questions

1. What is the difference between resisting apprehension and fleeing apprehension?
Resisting involves physically or verbally opposing the arresting authority, while fleeing means attempting to run away or avoid being taken into custody. Both are punishable under Article 95.

2. Can a person resist if the apprehension is unlawful?
Yes, unlawful apprehension can serve as a defense. If the arresting person lacked legal authority, resistance may not constitute an offense.

3. What is breach of arrest?
Breach of arrest occurs when a service member ordered into arrest leaves the designated area or limits of arrest without permission. It differs from escape because the person was not in confinement but under restriction.

4. How serious is escape from custody?
Escape is the most serious Article 95 violation, punishable by up to 2 years confinement and a dishonorable discharge. The severity reflects the danger of undermining confinement authority.

5. Does Article 95 apply to pretrial confinement?
Yes, it applies to both pretrial and post-conviction confinement. Escape from either situation violates the article.

6. What if someone helps another escape?
Helping another service member escape can result in separate charges under Article 95 or related provisions. Both the escapee and the helper may face punishment.

7. Are verbal refusals considered resistance?
Yes, refusal to comply with lawful apprehension, even without physical struggle, can be considered resistance if it obstructs the arrest.

8. Does Article 95 apply in peacetime and wartime?
Yes, it applies at all times. Discipline requires compliance with lawful custody regardless of operational context.

9. What if the accused thought confinement was over?
A genuine mistake about the duration or terms of confinement may be a defense. Courts examine whether the belief was reasonable.

10. Why is Article 95 important?
Because resistance or escape undermines the military justice process and threatens good order. Enforcing compliance ensures accountability and maintains discipline in the armed forces.

Sources

  • Uniform Code of Military Justice, 10 U.S.C. § 895, Article 95
  • Manual for Courts-Martial, United States (2024 edition)
  • Army Regulation 27-10, Military Justice
  • Navy JAGMAN (Judge Advocate General’s Manual) § 0122
  • Air Force Instruction 51-201, Administration of Military Justice
  • Court of Appeals for the Armed Forces, United States v. Edwards, 69 M.J. 375 (2011)
  • Military Attorney Joseph L. Jordan, Articles of the UCMJ web page

This content is for informational purposes only. If you are facing issues related to Article 95 or any other UCMJ provision, you should consult a qualified military attorney.

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