Table Content
Article 87b of the Uniform Code of Military Justice establishes criminal liability for service members who unlawfully depart from, or violate the conditions of, correctional custody. Correctional custody is a nonjudicial punishment or administrative restraint that limits liberty but does not rise to the level of confinement. The article addresses both complete departure from custody and acts that undermine the imposed restrictions.
The article criminalizes leaving correctional custody without authorization or failing to remain within the limits established by the authority imposing the restraint. It also covers intentional violations of rules or conditions that materially defeat the purpose of custody, such as removing restraints or disobeying required movement or reporting protocols. Actual physical escape is not required if the service member breaches the lawful boundaries of custody.
Any member of the armed forces who is lawfully placed in correctional custody may be charged under Article 87b. The custody must have been properly imposed under military authority. Civilians and contractors not subject to the UCMJ cannot be charged under this provision.
The offense generally requires that the accused knew or reasonably should have known of the correctional custody status and its limits. The government must show at least intentional or knowing conduct in leaving custody or breaching its conditions. Negligent conduct alone is insufficient unless it rises to a disregard of known restrictions.
Attempt and conspiracy may apply when a service member takes substantial steps toward escaping or agrees with others to do so. Accomplice liability may attach when another person intentionally assists or facilitates the breach of custody. These theories follow the general UCMJ provisions governing inchoate and derivative offenses.
The government must prove each element of this offense beyond a reasonable doubt. These elements define the precise factual and legal findings required to establish that an accused service member unlawfully departed from, or violated the terms of, imposed correctional custody.
The mens rea requirement is satisfied by proof that the accused knew of their correctional-custody status and intentionally engaged in conduct that resulted in an escape or breach. No specific intent to permanently avoid custody is required; general intent to commit the departing or violating act is sufficient.
The actus reus consists of either physically departing the limits of correctional custody without authority or violating a specific, enforceable condition integral to that custodial status. This may include leaving a designated area, refusing required formations, or otherwise failing to remain within prescribed restrictions.
“Correctional custody” is a defined punitive measure involving restriction, control, and required duties, typically imposed under Article 15 or by court-martial sentencing authority. A “breach” encompasses conduct short of full escape but still inconsistent with the essential restraints of custody. The government must establish that the underlying custody and its conditions were validly imposed and communicated to the accused.
Punishment under the Uniform Code of Military Justice depends on the date the alleged offense occurred. Offenses committed before December 27, 2023 are sentenced under the traditional maximum_punishment model. Offenses committed on or after December 27, 2023 fall under the revised sentencing framework created by the Military Justice Act of 2016, as implemented in the 2024 Manual for Courts_Martial.
For Article 87b (Escape or Breach of Correctional Custody), the pre_December 27, 2023 maximum authorized punishment is derived from the punitive articles section of the then_applicable Manual for Courts_Martial. The authorized maximum punishment was:
No mandatory minimum sentence applied to this offense under the pre_2023 system.
Under the revised sentencing system, Article 87b is assigned to a specific sentencing category that governs the authorized confinement range. Article 87b is placed in Sentencing Category 1, which carries:
Under the new system, sentencing categories establish structured confinement ranges rather than relying solely on a single maximum punishment. Each category contains a defined ceiling that cannot be exceeded, but within that range the military judge or panel determines the precise confinement term. This differs from the prior model, which provided only a maximum confinement term and allowed the sentencing authority broad discretion below that ceiling.
Charging decisions under Article 87b typically reflect the underlying facts, the investigative record, and the discretion of the command reviewing the incident. Most cases arise from straightforward breaches of imposed custody conditions, but the manner in which the member departs or fails to comply often shapes how prosecutors frame the charge.
In practice, Article 87b allegations tend to surface in routine disciplinary environments rather than extreme situations. Common scenarios include a service member leaving a designated correctional custody facility without authorization, failing to return from a work detail, or violating explicit restrictions placed during structured custody programs. Cases may also stem from attempted escapes, where the individual’s actions demonstrate clear intent to depart custody even if they are stopped before completing the escape. Less dramatic but common fact patterns include walking away from a correctional supervisor, ignoring required movement orders between custody checkpoints, or breaching the terms of a command-imposed custody schedule.
Most cases begin with immediate reporting by correctional custody staff or supervisory personnel who identify that a service member has departed or failed to comply with imposed restrictions. Commands frequently initiate a preliminary inquiry or commander’s investigation to document the circumstances and secure witness statements. When the breach involves flight from a secured location, potential interference with custodial personnel, or possible criminal conduct, military law-enforcement agencies such as CID, NCIS, OSI, or CGIS may take a leading role. Their involvement typically focuses on confirming the timeline, locating the member, and determining whether additional offenses occurred during the breach.
Prosecutors often apply charge-stacking where multiple theories reasonably fit the facts, pairing Article 87b with absence, disobedience, or misconduct charges. Overlap is common because a single act of leaving custody can violate several legal duties simultaneously. Alternative charging theories may also be used to ensure that a panel or military judge can consider different characterizations of the conduct, especially when intent to escape must be distinguished from simple noncompliance. These patterns reflect an effort to capture all aspects of the incident within the UCMJ framework without relying on any single provision.
Prosecutions under UCMJ Article 87b, addressing escape or breach of correctional custody, frequently involve disputes over the government’s ability to establish each required element beyond a reasonable doubt. Litigation often turns on factual reconstruction, credibility assessments, and the interpretation of key statutory terms. Courts may also resolve significant evidentiary questions that influence whether certain proof is admitted or excluded.
Element-focused disputes commonly arise when assessing whether an accused was lawfully placed in correctional custody, whether the conditions of custody were clearly established, and whether an act constituted an escape or breach under the statutory definition. Courts often examine the clarity of orders, the authority of the individual imposing custody, and whether the accused’s conduct objectively amounts to leaving or violating the imposed constraints. Challenges may turn on the sufficiency and precision of the government’s evidence regarding custody boundaries, notice to the accused, and documentation of the custodial status.
Intent or knowledge requirements can become central issues when determining whether the alleged conduct was purposeful, reckless, or negligent. Disputes may focus on whether the accused knowingly departed custody or whether circumstances such as misunderstanding of instructions, administrative confusion, or ambiguous orders negate the required mental state. Courts frequently examine the surrounding context, communications from custodial authorities, and the accused’s observable behavior to determine whether the government has met its burden on mens rea.
Witness credibility can play a significant role, particularly when cases depend on testimony from custodial personnel, supervisors, or individuals who observed the alleged breach. Inconsistencies in accounts, gaps in reporting, or differing recollections can affect the weight and reliability of the evidence. Courts may also consider the reliability of statements made by the accused or third parties, evaluating whether the factual record supports each element without determining guilt or innocence at the analytical stage.
Common evidentiary questions include the admissibility of statements made during investigative interviews, the handling of physical or digital records documenting custody status, and the propriety of searches conducted to locate an absent service member. Disputes may involve compliance with procedural requirements, voluntariness of admissions, or the chain of custody for documentary proof. Suppression motions can arise when the defense challenges whether evidence was obtained in accordance with constitutional or military evidentiary rules.
Interpretive disputes may occur when applying statutory or regulatory language defining “correctional custody,” “escape,” or “breach.” Courts may analyze cross-referenced provisions or implementing regulations to determine the scope and meaning of custodial requirements. Ambiguities in terminology, procedural mandates, or the interaction between Article 87b and other punitive articles can generate significant legal debate regarding the boundaries of criminal liability.
Offenses involving resisting or escaping apprehension under Article 87a
Unlawful prisoner release and escape issues under Article 96
Collateral consequences are administrative, professional, or legal effects that may arise independently of the adjudged court-martial sentence. These outcomes stem from military regulations, federal or state law, or agency determinations, and may continue to affect a service member after completion of any judicial punishment.
A conviction under Article 87b, involving escape or breach of correctional custody, may prompt administrative review of a service member’s suitability for continued service. Potential consequences include:
Because escape-related offenses raise concerns about reliability and rule compliance, a conviction may affect eligibility for a security clearance or continued access to classified information. Clearance adjudicators may view the conduct as relevant to judgment, trustworthiness, and personal conduct standards. Post-service employment that relies on a security clearance or suitability determination may also be affected.
Article 87b offenses do not typically trigger sex offender registration. However, any registration or reporting obligation is governed by federal and state law, and requirements depend on statutory definitions rather than the UCMJ article alone.
Conduct underlying an escape or breach of custody may also violate federal or state criminal statutes, such as escape from confinement or resisting custody. Civil liability could arise if the conduct results in property damage or injuries.
For non-citizen service members, a conviction may affect immigration status, admissibility, or future naturalization if the conduct is deemed relevant to good moral character assessments or specific statutory grounds.
During the investigative phase of an Article 87b allegation, key decisions occur that influence how the case develops long before any charges are formally preferred. The information recorded, statements made, and administrative actions initiated at this stage often shape both the evidence available and the command’s perception of the incident.
Military investigations typically begin collecting evidence immediately, including witness accounts, digital records, and documents related to correctional custody. Early legal involvement can help ensure that evidence is accurately preserved, that optional statements are not misinterpreted, and that potentially incomplete or ambiguous information is properly contextualized.
Command or law-enforcement interviews may occur before a service member fully understands the specific allegations under Article 87b. Without a full grasp of rights or the scope of questioning, a member may provide information that is incomplete or phrased in a way that creates misunderstanding, even if unintentional. Early legal guidance helps reduce the risk of statements being taken out of context.
Administrative or command-directed inquiries can proceed parallel to, or independent from, criminal investigations. Decisions made during these processes—such as responses to taskings or explanations provided to command—become part of the record and may influence later determinations.
Early choices regarding statements, consent to searches, or how administrative requests are handled can have lasting effects on subsequent proceedings. These initial actions may shape the direction of a court-martial, administrative separation, or other adverse actions, which is why some service members consult civilian military defense lawyers during the investigative stage.
Gonzalez & Waddington is a civilian military defense law firm that concentrates on representing service members facing allegations under the Uniform Code of Military Justice. The firm handles a wide range of military criminal cases across all branches, providing guidance to clients navigating courts-martial, administrative actions, and complex military justice procedures. Their experience includes advising service members stationed in the United States and abroad, and addressing cases involving confinement, custody, and discipline-related offenses.
If you are facing allegations under UCMJ Article 87b or have questions about your rights within the military justice system, you may contact Gonzalez & Waddington to discuss your situation. A consultation can help you better understand the process and the options available based on the facts of your case.
Q: What does UCMJ Article 87b: Escape or Breach of Correctional Custody cover?
A: Article 87b addresses situations where a service member escapes from, attempts to escape from, or breaches the conditions of lawful correctional custody imposed by authorized military authorities. It applies to individuals who have been placed in correctional custody as a form of punishment or restraint. The article focuses on whether the custody was lawful, whether the member knowingly departed or violated conditions, and whether the conduct was intentional rather than accidental or unauthorized by command.
Q: What is the maximum punishment for UCMJ Article 87b: Escape or Breach of Correctional Custody?
A: The maximum punishment depends on factors such as the nature of the escape, any aggravating circumstances, and whether force or violence occurred. Potential consequences may include confinement, reduction in rank, forfeitures, and a punitive discharge when tried at a court-martial. Commanders and legal authorities determine the appropriate forum, and sentencing is guided by the Manual for Courts-Martial and the facts developed during the case.
Q: Can an allegation under this article lead to administrative separation even without a conviction?
A: Yes. Commands may pursue administrative separation when they determine a service member’s conduct does not meet retention standards, even if no court-martial conviction occurs. Administrative actions rely on a lower burden of proof and may consider a broader range of conduct. The member generally has opportunities to respond, but the final decision rests with the separation authority under applicable service regulations and policies.
Q: Do I need a civilian military defense lawyer for an investigation under this article?
A: Service members are entitled to military defense counsel at no cost for adverse proceedings, but some choose to hire civilian counsel for additional support. Whether to retain a civilian attorney depends on the complexity of the allegations, potential career impact, and personal preference. A civilian attorney can provide independent guidance, but it is not required to participate in investigations or respond to command actions.
Q: Can an Article 87b allegation be handled without a court-martial, such as through administrative action or nonjudicial punishment?
A: Yes. Commands may address alleged breaches of correctional custody through nonjudicial punishment, administrative measures, counseling, or other corrective actions when appropriate. The chosen approach depends on the severity of the conduct, the member’s record, and the command’s assessment of discipline needs. Court-martial proceedings are typically reserved for more serious or repeated violations or cases involving aggravating circumstances.
Q: Which investigative agencies typically handle suspected violations of Article 87b?
A: Investigations may be conducted by military law enforcement such as military police, security forces, or criminal investigative units, depending on the circumstances and location. Commands may also initiate preliminary inquiries to clarify facts before referring matters to investigative bodies. The investigative scope usually focuses on the lawfulness of custody, the member’s actions, and any contributing factors surrounding the alleged escape or breach.
Q: What types of evidence are commonly reviewed in an Article 87b case?
A: Evidence often includes custody orders, duty logs, witness statements, surveillance footage, and documentation showing when and how the member left custody or violated conditions. Investigators may also examine communication records, command directives, and the member’s prior disciplinary history. The goal is to determine whether the custody was lawful, whether the member knowingly departed from it, and whether any mitigating or clarifying circumstances affected the situation.
You can review the individual Articles of the UCMJ and learn more about military law by clicking here: UCMJ Articles and Military Justice Resources. You can also explore official military law guidance from the Army Judge Advocate General’s Corps at jagcnet.army.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.
