Table Content
Article 87a of the Uniform Code of Military Justice establishes criminal liability for service members who resist apprehension, attempt to escape from custody, or actually escape from custody. The provision addresses conduct occurring during the initial stages of a lawful apprehension as well as actions taken after a service member has been placed under restraint. The article applies regardless of whether the underlying reason for the apprehension involves a separate offense.
Article 87a covers a range of obstructive actions that impede lawful restraint. The following conduct may constitute an offense:
Only persons subject to the UCMJ may be prosecuted under Article 87a. This generally includes active-duty service members, certain reservists, and others formally brought under military jurisdiction. Civilians are not charged under Article 87a, though separate federal statutes may apply to them.
The offense requires proof that the accused acted knowingly and intentionally. Accidental flight or unintentional noncompliance does not satisfy the required mental element. The prosecution must show that the accused understood an apprehension was underway and deliberately resisted or escaped.
Attempt liability commonly applies when a service member takes a substantial step toward escape even if the effort fails. Conspiracy charges are possible when two or more individuals agree to resist or escape and commit an overt act in furtherance of that plan. Accomplice liability may arise when a person subject to the UCMJ assists, encourages, or facilitates another’s resistance or escape.
Taken together, Article 87a provides a comprehensive framework for maintaining lawful authority over service members during detention and apprehension procedures.
The government must prove each element of the offense beyond a reasonable doubt. These elements define the specific conduct and mental state that constitute resisting or escaping lawful apprehension under the Uniform Code of Military Justice.
The mens rea required for Article 87a is willfulness. The government must show that the accused acted intentionally and purposely, rather than accidentally or through negligence. Knowledge of the apprehending official’s authority is essential to establishing this state of mind.
The actus reus consists of either resisting a lawful apprehension or escaping from lawful custody. Resistance may include physical acts, active evasion, or other conduct that obstructs or impedes an apprehending official. Escape involves departing from lawful custody without authorization after apprehension has been initiated or completed.
“Apprehension” is defined as the taking of a person into custody. A “person authorized to apprehend” includes military law enforcement personnel, commissioned officers, warrant officers, noncommissioned officers, and others designated under the UCMJ and applicable regulations.
Punishment under the Uniform Code of Military Justice depends on the date of the alleged offense. Offenses committed before December 27, 2023 are sentenced under the traditional “maximum punishment” model. Offenses committed on or after that date are sentenced under the Military Justice Act of 2016’s revised framework, which uses sentencing categories and confinement ranges.
Article 87a covers several distinct acts: resisting apprehension, fleeing apprehension, breach of arrest, escape from custody, and escape from confinement. Under the pre_December 27, 2023 system, each subsection carried its own maximum authorized punishment:
For all subsections where a punitive discharge was authorized, reduction to E_1 and total forfeitures could be adjudged. No mandatory minimum sentences apply to Article 87a offenses.
Under the revised system, Article 87a offenses are assigned sentencing categories in Appendix 12A of the Manual for Courts_Martial. The applicable category depends on the specific subsection charged. Generally:
Unlike the prior single-maximum model, sentencing categories establish structured confinement ranges and create uniformity across offenses with similar severity. The maximum exposure is determined by the assigned category rather than the historical offense-specific maximum alone.
Charging decisions under Article 87a typically reflect the specific fact pattern of the encounter, the investigative record built by military law_enforcement agencies, and the command’s assessment of the service member’s conduct within the broader disciplinary context. Commands frequently rely on a combination of witness statements, security footage, law_enforcement reports, and contemporaneous communications to determine whether the elements of resisting or escaping apprehension are met.
Allegations under Article 87a most often arise from routine law_enforcement interactions that escalate. These charges frequently stem from:
Cases typically begin with a report from military police, base security forces, or civilian authorities who transfer jurisdictional information to the command. More serious incidents or those involving potential additional offenses may prompt investigative involvement from CID, NCIS, OSI, or CGIS. These agencies gather physical evidence, video recordings, and statements from law_enforcement personnel and witnesses. Commands may also conduct parallel command-directed inquiries to clarify timelines, orders given, and context leading up to the attempted apprehension.
Prosecutors commonly charge Article 87a alongside related offenses arising from the same sequence of events. Charge_stacking occurs when multiple statutes cover different aspects of the conduct, allowing fact-finders to consider alternative theories such as assault, obstruction, or disobedience. Overlap between resisting apprehension and other disruptive conduct provisions is frequent, and charges may be drafted in the alternative to ensure that the underlying behavior is fully captured within the available UCMJ frameworks.
Prosecutions under UCMJ Article 87a often hinge on whether the government can establish each statutory element with reliable evidence. Litigation frequently involves disputed factual narratives, the credibility of witnesses or investigators, and the admissibility of key evidence. Interpretation of statutory terms and cross-referenced provisions also plays a significant role in shaping how courts evaluate the conduct at issue.
Contested issues commonly arise over whether the government has met its burden on specific elements such as lawful apprehension, identity of the apprehending authority, or actions amounting to resistance or escape. Challenges may focus on:
These disputes often turn on the sufficiency, consistency, and clarity of the evidence rather than on tactical considerations.
Mens rea is frequently a central point of litigation. Courts may be asked to determine whether the government has shown intent, knowledge, recklessness, or negligence as required by the charged theory. Disputes may involve:
Because intent is often inferred from conduct, these issues frequently intersect with factual disputes and witness testimony.
Witness credibility can significantly affect Article 87a prosecutions. Differences in perception between law enforcement personnel, bystanders, and the accused can lead to competing accounts of the same event. Courts may examine:
Such disputes do not determine guilt on their own but often shape how factfinders interpret contested conduct.
Evidentiary rulings may influence the outcome of Article 87a cases, particularly when the prosecution relies on statements, digital evidence, or physical proof. Frequent issues include:
Courts may be called upon to interpret ambiguous statutory terms, assess definitional cross-references, or reconcile Article 87a with related provisions in the UCMJ or implementing regulations. Questions about the scope of “apprehension,” the nature of “resistance,” or the required mental state can lead to significant legal debate and shape the boundaries of the offense.
Article 92, involving failure to obey orders, frequently charged with resisting apprehension
Article 96, addressing prisoner escape and related custody violations
Collateral consequences are administrative, professional, or legal effects that may arise from a military conviction independently of any sentence imposed by a court-martial. These outcomes are not part of punitive measures but may still influence a service member’s career, benefits, and post-service opportunities.
A conviction under UCMJ Article 87a may prompt administrative review of a member’s suitability for continued service. Possible outcomes include:
Misconduct involving resistance or escape from apprehension may raise concerns related to judgment, reliability, and trustworthiness—factors evaluated during security clearance determinations. This may result in suspension, revocation, or denial of a clearance, which can limit access to classified duties and reduce opportunities both in the military and in civilian sectors requiring clearance eligibility.
Convictions under Article 87a do not ordinarily trigger sex offender registration or similar mandatory reporting. However, federal and state laws ultimately govern registration requirements, and any applicable obligations would depend on the specific conduct and jurisdictional rules.
The underlying conduct associated with resisting or escaping apprehension may also violate federal or state laws. In some situations, this could create exposure to separate civilian prosecution or, less commonly, civil liability arising from related actions.
For non-citizen service members, certain convictions may affect immigration status, admissibility, or naturalization processes. Effects vary by individual circumstances and applicable immigration law.
During the investigative phase of an alleged violation of UCMJ Article 87a, many decisions occur before any formal charges are preferred. These early actions often shape the course of the case, influence how evidence is interpreted, and determine what information becomes part of the official record.
Military law enforcement and command investigators typically collect evidence immediately after an allegation is made. Statements from witnesses, digital records, and physical documents are often obtained before a service member has fully assessed the situation. Early legal involvement helps ensure that the collection and preservation of evidence are conducted within appropriate boundaries and that potentially ambiguous materials are not interpreted without context.
Command or law-enforcement interviews can occur before a service member fully understands the nature of the allegation or the scope of the investigation. Without guidance, individuals may offer incomplete or imprecise statements, or respond to questions without recognizing their legal significance. Consulting with a defense attorney, including civilian military defense counsel, can help clarify procedural rights and the implications of answering certain questions.
Administrative inquiries or command-directed investigations may proceed separately from any criminal process. Findings from these inquiries can influence duty status, administrative actions, or further investigative steps. Decisions made early in these processes may shape how the command views the incident and how subsequent actions unfold.
Choices made at the outset—such as providing statements, consenting to searches, or responding to administrative requests—can have lasting consequences. These early actions may affect later evidentiary rulings, command decisions, or outcomes at a court-martial or administrative hearing.
Gonzalez & Waddington is a civilian military defense law firm that focuses on representing service members worldwide in cases arising under the Uniform Code of Military Justice. The firm handles a wide range of military criminal matters, drawing on extensive experience with courts-martial, investigations, and administrative actions. Its attorneys work with service members from all branches and provide guidance regarding the complex procedures and consequences associated with UCMJ allegations.
If you are facing an allegation involving UCMJ Article 87a or any related military offense, Gonzalez & Waddington can provide informed legal guidance tailored to your situation. For more information or to discuss your circumstances, you may contact the firm to request a consultation.
Q: What does UCMJ Article 87a: Resisting or Escaping Apprehension cover?
A: This article applies when a service member knowingly resists, flees, or attempts to escape from lawful apprehension, custody, or detention. It covers actions ranging from physically resisting an apprehending official to evading custody after initial detention. The focus is on whether the authority to apprehend was lawful and whether the service member acted intentionally. The article applies across all branches and includes both completed and attempted acts of escape or resistance.
Q: What is the maximum punishment for UCMJ Article 87a: Resisting or Escaping Apprehension?
A: Maximum punishment depends on the specific conduct, including whether force was used, whether an escape was completed, and whether confinement was involved. Consequences can include confinement, forfeiture of pay, reduction in rank, or a punitive discharge if adjudged at a court-martial. Each case is evaluated on its facts, and sentencing authorities consider the circumstances surrounding the alleged resistance or escape when determining the appropriate punishment.
Q: Can an allegation under this article lead to administrative separation even without a conviction?
A: Yes. Commanders may initiate administrative separation based on substantiated misconduct, including resisting or escaping apprehension, even if no court-martial conviction occurs. Administrative processes use a lower evidentiary standard than criminal proceedings. The outcome can vary depending on service regulations, the member’s record, and the nature of the alleged conduct. Potential results may include retention, counseling, or separation with a characterization based on the overall service record and available evidence.
Q: Do I need a civilian military defense lawyer for an investigation under this article?
A: Service members are entitled to consult with military defense counsel at no cost, but some choose to hire civilian counsel for additional legal assistance. Whether to do so depends on factors such as case complexity, potential exposure, and personal preference. Civilian counsel may provide independent advice and representation, but the decision to hire one is entirely optional. Military and civilian attorneys can coordinate to support the member’s legal interests throughout the process.
Q: Can allegations under this article be handled without a court-martial, such as through administrative action or nonjudicial punishment?
A: Yes. Depending on the severity of the conduct and command discretion, allegations of resisting or escaping apprehension may be addressed through nonjudicial punishment, administrative counseling, or other corrective measures instead of court-martial. These alternatives focus on accountability and maintaining good order while avoiding criminal adjudication. The chosen approach generally reflects the seriousness of the incident, available evidence, and the service member’s overall performance and disciplinary history.
Q: What types of evidence are commonly reviewed in investigations involving resistance or escape?
A: Investigators typically examine witness statements, security footage, apprehension reports, and any physical evidence documenting the interaction between the service member and law enforcement or command authorities. They may also review communications, location data, and statements from the member. The goal is to establish whether the apprehension was lawful and whether the member intentionally resisted or attempted to flee. Evidence is assessed for accuracy, consistency, and relevance to the alleged conduct.
If you want to review the Articles of the UCMJ and learn more about military law, you can start here: UCMJ Articles and Military Justice Resources. You may also find helpful official information from the Air Force Judge Advocate General’s Corps at afjag.af.mil.
A renowned military criminal defense attorney and best-selling author, Michael Waddington defends clients worldwide in serious cases and trains lawyers in advanced cross-examination. He is frequently featured by major media outlets like CNN and 60 Minutes.
Alexandra González-Waddington is a top military and civilian defense attorney who has handled high-profile sexual assault, violent crime, and war-crimes cases globally. Her work is widely recognized by media outlets including 60 Minutes and ABC’s Nightline.
