UCMJ Article 87a Resistance, Flight, Breach of Arrest, and Escape vs Article 95 Offenses by Sentinel or Lookout: Evading Custody vs Failing Guard Duty
On this page: 5 sections
The two articles look at restraint and watchfulness from opposite sides. Article 87a punishes the person who is being apprehended, is under arrest, or is in custody or confinement and who resists, flees, breaks the arrest, or escapes. Article 95 punishes the person posted as a sentinel or lookout who is drunk or asleep on post, leaves it before being relieved, or loiters or wrongfully sits down on it.
Both numbers date from January 1, 2019: resistance and escape moved from Article 95 to Article 87a, and the sentinel offenses moved from Article 113 to Article 95.
Article 87a
Any person subject to this chapter who … (1) resists apprehension; (2) flees from apprehension; (3) breaks arrest; or (4) escapes from custody or confinement; shall be punished as a court-martial may direct.
Source: 10 U.S.C. § 887a (Article 87a), renumbered from § 895 by Pub. L. 114-328, § 5401(2).
Apprehension: resisting and fleeing
Apprehension is “the taking of a person into custody” (MCM, Part IV, ¶ 12.c(1)(a)). The elements for resisting and fleeing are an attempt to apprehend by a person authorized to do so, and active resistance or flight (¶ 12.b(1)-(2)).
- Authority. Whether a person’s status authorized an apprehension is a question of law for the military judge; whether the person had that status is a question of fact (¶ 12.c(1)(b)).
- Active conduct. Resistance must be active, such as assaulting the person making the apprehension; words of opposition, argument, or abuse are not enough. Flight must also be active, such as running or driving away (¶ 12.c(1)(c), (2)).
- Mistake. A reasonable belief that the person had no authority to apprehend is a defense; a belief that there was no basis for the apprehension is not (¶ 12.c(1)(d)).
- Illegal apprehension. There is no conviction for resisting an illegal apprehension, though other offenses such as assault may apply. An apprehension by an authorized person is presumed legal absent contrary evidence (¶ 12.c(1)(e)).
Arrest and custody
- Breaking arrest. Arrest includes pretrial arrest under Article 9 and arrest under Article 15. It is a moral restraint set by orders; breaking it means going beyond those limits, and the reason is immaterial, including innocence of the underlying offense (¶ 12.c(3)).
- Escape from custody. Custody is the restraint of free movement imposed by a lawful apprehension, physical or by control exercised in the prisoner’s presence, lasting until other restraint is imposed or the person is released (¶ 12.c(4)(a)).
- Escape from confinement. Confinement is physical restraint under the Rules for Courts-Martial or nonjudicial punishment. Escape may be with or without force, and with or without the custodian’s consent, but a prisoner released by someone with apparent authority cannot be convicted of escape. An escape is complete once the prisoner is momentarily free; immediate pursuit delays completion (¶ 12.c(5)).
Article 95 in brief
Article 95(a) covers a sentinel or lookout who is drunk on post, sleeps on post, or leaves post before being regularly relieved; subsection (b) covers loitering or wrongfully sitting down on post (10 U.S.C. § 895). A sentinel or lookout is someone whose duties require constant alertness to watch for the enemy or to guard persons, property, or a place (MCM, Part IV, ¶ 22.c(1)(d)). The article applies in peace and war; war raises the maximum to death for 95(a).
How the facts sort
| Article 87a | Article 95 | |
|---|---|---|
| Who commits it | The person apprehended, arrested, or held | The sentinel or lookout |
| Core conduct | Active resistance, active flight, going beyond arrest limits, or escaping | Drunk or asleep on post, leaving before relief, loitering or wrongfully sitting |
| Legality of the underlying restraint | A defense if the restraint was illegal | Not relevant |
| Wartime | No wartime escalation | Death may be adjudged for 95(a) in time of war |
For example, a service member who shoves a military police officer and runs when told to stop and submit to apprehension raises resisting and fleeing under Article 87a. If the guard posted at the confinement facility’s gate that night falls asleep and a prisoner walks out, the guard’s conduct raises sleeping on post under Article 95, and possibly allowing an escape through neglect under Article 96, while the prisoner faces escape from confinement under Article 87a. Whether an apprehension was lawful, and whether a guard was posted as a sentinel, are questions for the military judge and the court-martial.
Maximum punishments
| Offense | Maximum (MCM, Part IV, ¶ 12.d and ¶ 22.d) |
|---|---|
| Resisting apprehension | Bad-conduct discharge, forfeiture of all pay and allowances, 1 year |
| Flight from apprehension | Bad-conduct discharge, forfeiture of all pay and allowances, 1 year |
| Breaking arrest | Bad-conduct discharge, forfeiture of all pay and allowances, 6 months |
| Escape from custody, pretrial confinement, or confinement under Article 15 | Dishonorable discharge, forfeiture of all pay and allowances, 1 year |
| Escape from post-trial confinement | Dishonorable discharge, forfeiture of all pay and allowances, 5 years |
| Sentinel drunk or asleep on post, or leaving post, in time of war | Death or such other punishment as a court-martial may direct |
| The same, while receiving special pay under 37 U.S.C. § 310 | Dishonorable discharge, forfeiture of all pay and allowances, 10 years |
| The same, all other cases | Dishonorable discharge, forfeiture of all pay and allowances, 1 year |
| Loitering or wrongfully sitting on post, in time of war or with special pay | Dishonorable discharge, forfeiture of all pay and allowances, 2 years |
| Loitering or wrongfully sitting on post, other cases | Bad-conduct discharge, forfeiture of all pay and allowances, 6 months |
In a capital case, the members decide whether a death-eligible conviction results in death or life without eligibility for parole, or return the matter to the military judge (10 U.S.C. § 853(c)(1)). Otherwise, where every finding of guilty is for an offense committed after December 27, 2023, the military judge determines the sentence in a general or special court-martial (§ 853(b)(1)).
Sources
- 10 U.S.C. § 887a, resistance, flight, breach of arrest, and escape (Article 87a)
- 10 U.S.C. § 895, offenses by sentinel or lookout (Article 95)
- 10 U.S.C. § 896, release of prisoner without authority; drinking with prisoner (Article 96)
- 10 U.S.C. § 853, findings and sentencing (Article 53)
- Manual for Courts-Martial, United States (2024 edition), Part IV, ¶ 12 and ¶ 22.
General information on Articles 87a and 95; it does not evaluate any apprehension, confinement, or guard post. This page reflects the UCMJ as amended through Public Law 119-60 (December 18, 2025) and the Manual for Courts-Martial (2024 edition) as amended by Executive Order 14130.