Legal Disclaimer: This article provides general legal information about the Uniform Code of Military Justice. It is not legal advice and does not create an attorney-client relationship. Every case involves unique facts and circumstances. If you are facing charges under the UCMJ, consult with a qualified military defense attorney immediately.
Note: The UCMJ was reorganized, and offenses previously under Article 95 (Resistance, Breach of Arrest, Escape) are now codified under Article 87a. This article compares resisting apprehension and related custody offenses (Article 87a) with sentinel and lookout offenses (now under Article 113). The confusion between “old Article 95” and current provisions makes understanding the current structure essential.
Understanding the Current Structure
After UCMJ reorganization:
Article 87a covers: Resisting apprehension, flight from apprehension, breaking arrest, and escape from custody. These were formerly under Article 95.
Article 113 covers: Misbehavior of a sentinel or lookout. This is a separate offense about guard duty failures.
The confusion arises because older references cite “Article 95” for custody-related offenses, but the current UCMJ places these under Article 87a.
Article 87a: Custody-Related Offenses
Article 87a addresses several related offenses:
Resisting apprehension. Actively opposing someone authorized to apprehend you.
Flight from apprehension. Running or fleeing to avoid being apprehended.
Breaking arrest. Leaving the limits of arrest without authority.
Escape from custody. Leaving confinement or custody without authority.
All involve evading or defeating lawful custody or restrictions on liberty.
Article 113: Sentinel Offenses
Article 113 addresses guard duty failures:
Drunk or asleep on post. Being intoxicated or sleeping while on guard duty.
Leaving post before relief. Abandoning the guard position without authorization.
Failing to perform duties. Not carrying out required guard functions.
These involve failing in the responsibility to guard or watch, not evading personal custody.
The Fundamental Difference
Article 87a offenses involve the accused’s own liberty:
Being apprehended or restrained
Resisting that apprehension
Breaking free from restrictions
The accused is the subject of custody.
Article 113 offenses involve the accused’s duty to others:
Being assigned to guard or watch
Failing in that responsibility
The accused is supposed to restrict or watch others (or property), not be restricted themselves.
Resisting Apprehension (Article 87a)
Resisting apprehension requires:
A person authorized to apprehend. Military police, commissioned officers, NCOs, or others with apprehension authority.
Attempted apprehension. The authorized person tried to apprehend the accused.
Resistance. The accused actively opposed the apprehension.
Resistance can be:
Physical resistance (struggling, fighting)
Active efforts to prevent the apprehension
Using force against the apprehending authority
Mere verbal objection isn’t resistance; physical opposition is required.
Flight from Apprehension (Article 87a)
Flight from apprehension requires:
A person authorized to apprehend.
Attempted apprehension or knowledge that apprehension is being attempted.
Flight to avoid apprehension. Running, hiding, or taking other action to escape.
Flight is different from resistance:
Resistance involves confrontation (opposing the apprehension)
Flight involves evasion (escaping the apprehension)
Both are offenses, but they involve different conduct.
Breaking Arrest (Article 87a)
Breaking arrest requires:
The accused was in arrest. Formal restriction to certain limits (quarters, barracks, base).
The accused broke arrest. They left the prescribed limits without authority.
Arrest under military law isn’t the same as civilian arrest. Military arrest is a restriction to certain limits, often as a pretrial measure or pending action. Breaking those limits violates the arrest.
Escape from Custody (Article 87a)
Escape requires:
The accused was in custody. Confinement, either pretrial or post-conviction.
The accused escaped. They departed the custody without authority.
Escape from actual confinement is more serious than breaking arrest because confinement is a more restrictive form of custody.
Sentinel Offenses (Article 113)
Sentinel offenses require:
The accused was posted as sentinel or lookout. Officially assigned guard duty.
The offense occurred while so posted. During the guard duty period.
The accused committed one of the prohibited acts:
Was found drunk
Was found asleep
Left post before properly relieved
Failed to follow required procedures
These offenses compromise security by creating gaps in the guard function.
Typical Fact Patterns
Clear Article 87a (resisting/flight):
Military police attempt to apprehend a service member for suspected assault. The service member punches the MP and runs. This is both resisting apprehension and flight.
A service member on pretrial restriction to barracks leaves to go to a bar. This is breaking arrest.
A service member escapes from the brig by climbing over a fence. This is escape from custody.
Clear Article 113 (sentinel):
A service member assigned to gate guard duty falls asleep in the guard shack. This is being asleep on post.
A guard leaves their post to get food before their relief arrives. This is leaving post before relief.
A sentinel is found intoxicated while on duty at an ammunition storage area. This is drunk on post.
Not overlapping:
These offenses don’t typically overlap because they address different situations. A guard who abandons post isn’t resisting apprehension (unless MPs try to apprehend them and they resist). Someone resisting arrest isn’t failing sentinel duties (unless they were on guard duty when apprehended).
Punishment Comparison
Article 87a offenses:
Resisting apprehension: bad-conduct discharge, forfeiture of all pay and allowances, confinement for 1 year
Flight from apprehension: bad-conduct discharge, forfeiture of all pay and allowances, confinement for 1 year
Breaking arrest: bad-conduct discharge, forfeiture of all pay and allowances, confinement for 6 months
Escape from custody: dishonorable discharge, forfeiture of all pay and allowances, confinement for 1 year (or more for escape from confinement)
Article 113 offenses:
In time of war: death or other punishment as court-martial directs
Otherwise: bad-conduct discharge, forfeiture of all pay and allowances, confinement for 1 year (varies by specific offense)
Sentinel offenses can carry extremely severe punishment in wartime because guard failures can have catastrophic consequences.
Lawfulness of Apprehension
For Article 87a offenses, the apprehension must be lawful:
Authorized person. Only certain individuals can apprehend military members.
Proper basis. There must be reasonable grounds for apprehension.
Proper execution. The apprehension must be conducted lawfully.
If the apprehension itself was unlawful, resistance may not be criminal. However, this defense is narrow. Even if you believe the apprehension is improper, the safer course is to comply and challenge it through proper channels rather than physically resist.
Defenses
For Article 87a offenses:
The apprehension wasn’t lawful
No actual resistance occurred (mere verbal protest)
The accused didn’t know apprehension was being attempted
The restriction limits were never properly communicated
Physical impossibility prevented compliance
For Article 113 offenses:
The accused wasn’t actually posted as sentinel
The accused was properly relieved
Medical emergency or incapacity
The alleged failure didn’t occur
The Wartime Distinction
Article 113 sentinel offenses carry potential death penalty in wartime. This reflects:
Combat situations where guard failures can cost lives
The critical importance of security in war zones
Historical treatment of sentinel failures as among the most serious offenses
Article 87a custody offenses don’t have this wartime enhancement because they involve personal custody rather than security duties.
Frequently Asked Questions
If I verbally refused to be apprehended but didn’t physically resist, is that resisting apprehension?
Probably not. Resisting apprehension typically requires physical opposition to the apprehension, not mere verbal objection. Saying “I don’t want to go” or “you can’t arrest me” isn’t resistance if you then comply when physically taken into custody. However, verbal refusal combined with actions that prevent apprehension (locking yourself in a room, creating barriers) might constitute resistance. Additionally, verbal conduct could support other charges like disrespect (Article 91 or 89) or failure to obey (Article 92) even if not resistance. The safest approach is to comply with apprehension and challenge its propriety through legal channels afterward.
What’s the difference between “arrest” and “confinement” in military law?
Arrest in military law is restriction to specified limits, such as your quarters, the barracks, or the installation. You’re not physically locked up, but you’re required to stay within those limits. Arrest is often used as a pretrial restriction pending investigation or court-martial. Confinement is actual physical custody, like being in the brig or a military correctional facility. Confinement involves locked doors and guards. Breaking arrest means leaving your restricted area. Escape means getting out of actual confinement. Both are Article 87a offenses, but escape is treated more seriously because confinement is a more significant restraint on liberty.
If a guard leaves their post during a genuine emergency, is that still an offense?
Context matters significantly. Article 113 prohibits leaving post before being properly relieved. However, if a genuine emergency required leaving (fire, medical emergency, immediate threat requiring response), that context would be considered. The defense might argue necessity or that the circumstances justified the departure. Commands and courts recognize that rigid adherence to post in the face of genuine emergencies isn’t expected. However, what constitutes a genuine emergency is evaluated objectively. Leaving post for personal convenience, minor issues, or situations that could have been handled by calling for assistance rather than abandoning post wouldn’t qualify. Document the emergency and report it immediately upon returning to post or being relieved.