You ran. Or you pushed past the MP who was trying to detain you. Or you walked away from restriction when the duty NCO’s back was turned. Article 95, UCMJ, 10 U.S.C. § 895, covers resistance to apprehension, flight from apprehension, breach of arrest, and escape from custody or confinement. It applies the moment military authority attempts to take physical control over you. The charge does not require violence-breach of arrest can occur simply by leaving a restricted area, and resistance can occur with nothing more than pulling away from a grip.
Article 95, UCMJ, 10 U.S.C. § 895, covers four distinct situations with different elements and different maximum punishments. Understanding which sub-offense applies to your specific conduct is the starting point for every Article 95 defense. Joseph L. Jordan is a former Army JAG Officer who served as both a prosecutor and defense counsel, including as a former military prosecutor at Fort Hood, Texas. Call **(888) 367-9489** now for a free consultation.
The Charge. Article 95 charges you with resistance, flight, or breach of arrest, including resisting apprehension, fleeing from apprehension, or breaking arrest or restriction. The government alleges you physically resisted being taken into custody, fled from those attempting to apprehend you, or violated the terms of a formal arrest or restriction.
What the Government Must Prove. Depending on the theory: that the apprehension was lawful and you resisted or fled, or that you were placed under valid arrest or restriction and knowingly broke its terms. Each theory has distinct elements.
Where the Case Breaks. The lawfulness of the apprehension or restriction is a threshold question.
If the apprehension was not authorized or the restriction was not properly imposed, the charge fails at the foundation. Defense counsel examines the authority behind the restraint.
What Makes This Dangerous. Resisting apprehension carries up to 1 year confinement. Breaking arrest carries up to 6 months. These charges are often stacked on top of the underlying offense that led to the apprehension or arrest.
What to Do Right Now. Invoke your Article 31(b) rights. Call (888) 367-9489 for a free consultation.
Elements:
Defense counsel targets the “actively resisted” element because reflexive movements, confusion, or failure to immediately comply do not constitute the affirmative physical resistance this offense requires.
Maximum: bad-conduct discharge, 1 year confinement, forfeiture.
Elements:
Defense counsel challenges whether the apprehending person had actual authority under the UCMJ and RCM, because if that authority did not exist, there was no lawful apprehension to flee from.
Maximum: bad-conduct discharge, 1 year confinement, forfeiture.
Elements:
Defense counsel examines whether the arrest limits were clearly communicated, because vague or ambiguous boundaries that the accused did not understand defeat the knowing departure this offense requires.
Maximum: bad-conduct discharge, 6 months confinement, forfeiture.
Elements:
Defense counsel challenges whether the person who imposed custody or confinement had the specific authority required under the UCMJ, because unauthorized detention vitiates the entire charge.
Maximum: dishonorable discharge, 1 year confinement, forfeiture.
Every Article 95 sub-offense requires that the person attempting apprehension, imposing arrest, or maintaining custody had authority to do so. Military authority to apprehend and detain is not unlimited. An NCO who attempts to physically detain someone outside their chain of command, or a civilian who attempts to impose military-style custody, may not have the authority required by Article 95. Defense counsel examines the authority of the specific person involved.
|
Offense |
Discharge |
Confinement |
Forfeitures |
|
Resisting apprehension |
DD |
3 years |
Total |
|
Flight from apprehension |
DD |
1 year |
Total |
|
Breach of arrest |
BCD |
6 months |
Total |
|
Escape from custody or confinement |
DD |
1 year |
Total |
|
Breaking restriction |
BCD |
1 month |
Total |
Under Executive Order 14103 (as amended by Executive Order 14130, December 2024), effective for offenses committed on or after 27 December 2023, sentencing authority transfers from the panel to the military judge in most cases.
Vulnerability 1: The person attempting apprehension lacked authority.
Military apprehension authority is defined by the UCMJ and RCM. Not every person in uniform has authority to apprehend every other service member. If the person who attempted apprehension lacked the legal authority to do so-based on rank, command relationship, or the specific circumstances-the Article 95 charge fails.
Vulnerability 2: The accused did not “actively resist” within the meaning of the article.
Resisting apprehension requires active resistance-not merely pulling away reflexively or failing to immediately comply. A service member who was startled, who did not immediately understand that they were being apprehended, or who moved away without any affirmative resistance may not satisfy the active resistance element.
Vulnerability 3: The breach of arrest or escape was inadvertent.
Breach of arrest requires knowing departure from the limits of arrest. If the accused did not understand the specific limits of their restriction, or if the limits were ambiguously communicated, the knowing element may not be satisfied.
Vulnerability 4: Self-defense during an unlawful apprehension.
If the attempted apprehension was unlawful-if the apprehending person lacked authority or used excessive force during the apprehension-the accused’s right to resist unlawful apprehension may be a defense. Military law is more restrictive than civilian law on resisting apprehension, but truly unlawful apprehensions may be a defense in limited circumstances.
A conviction under this article carries consequences beyond the sentence imposed at court-martial. A bad-conduct discharge eliminates most VA benefits including GI Bill education benefits and VA home loan eligibility. A federal conviction record appears on all background checks and must be disclosed on employment applications, security clearance questionnaires, and professional licensing applications. Security clearances are typically revoked upon conviction, limiting post-military career options in cleared positions. Defense counsel evaluates collateral consequences as part of the overall case strategy, including whether alternative dispositions such as nonjudicial punishment under Article 15 may achieve a resolution that avoids a federal criminal conviction.
Mr. Jordan has represented more than 1,000 service members and taken 250+ cases to verdict in every branch: Army, Navy, Air Force, Marines, Coast Guard, and Space Force. He has tried cases at installations throughout the United States, Europe, Asia, and the Middle East. He gets on a plane.
If you are facing Article 95 charges, the decisions you make now determine the shape of your entire defense. Evidence is preserved or lost in the first days. Witness accounts solidify. Command dynamics shift.
Call (888) 367-9489 now for a free consultation. Available 24/7.
Authority and insubordination charges are among the most command-driven prosecutions in military law. These cases often arise from interpersonal conflicts within the chain of command, and the line between legitimate disagreement and criminal insubordination is narrower than most service members realize. Defense counsel must understand military hierarchy, command relationships, and the factual context that determines whether the accused’s conduct actually meets the elements of the offense. Mr. Jordan has prosecuted and defended these cases and understands how the government builds its evidentiary chain, where that chain is weakest, and what defense strategies produce results at trial and in pretrial negotiations. Joseph L. Jordan is a former Army JAG Officer who served as both a prosecutor and defense counsel, including as a former military prosecutor at Fort Hood, Texas and with the 2nd Infantry Division in South Korea.
He has prosecuted and defended authority-related offenses and understands the command dynamics that drive these cases. He practices exclusively in military law and is highly experienced in criminal trial advocacy. Call (888) 367-9489 now. Available 24/7. military defense attorney Joseph L. Jordan has defended service members facing these charges across all military branches. Review our past case results for examples of cases we have handled. Past results do not guarantee future outcomes; every case depends on its own facts. Before speaking to investigators or law enforcement, assert your Article 31 rights. Understand the court-martial process before your case proceeds.
Does fleeing from an MP automatically result in an Article 95 charge?
Article 95 flight from apprehension requires that the person attempting apprehension had authority to apprehend the accused. If that authority existed and the accused fled, the charge is potentially supported. However, the full circumstances-why the accused fled, whether they understood they were being apprehended, and what happened immediately after-all bear on the analysis.
Can I be charged with both Article 95 and the underlying offense that led to my apprehension?
Yes. Article 95 is a separate charge from whatever underlying offense led to the apprehension attempt. Both charges can be filed and tried simultaneously. The outcome depends on the specific facts of each case, including the strength of the evidence, the credibility of witnesses, and whether procedural requirements were followed. A qualified military defense attorney can evaluate these factors and develop a defense strategy tailored to your situation.
What is the difference between breach of arrest and escape from confinement?
Breach of arrest involves leaving the limits of an arrest that restricts the accused’s movement without confining them physically. Escape from confinement involves physically escaping from a facility or custody where the accused was being held. The maximum punishment is higher for escape from confinement.
What is the difference between breach of arrest and AWOL?
Breach of arrest under Article 95 involves breaking the specific conditions of a formal arrest or restriction. covers unauthorized absence from a duty station or unit. The distinction matters because breach of arrest requires proof that the accused was placed under a valid arrest or restriction and knowingly violated its terms. Defense counsel examines whether the arrest or restriction was lawfully imposed and properly communicated.Article 86 (AWOL)
Can resisting apprehension be charged if the apprehension was unlawful?
The lawfulness of the apprehension is relevant to the charge. If the apprehension was not authorized or was conducted improperly, resistance to an unlawful apprehension may not satisfy the elements of Article 95. Defense counsel examines the authorization and circumstances of the apprehension.
This page provides general legal information about Article 95, UCMJ. It does not constitute legal advice and does not create an attorney-client relationship. Every case depends on its own facts. If you are facing charges under Article 95, contact a qualified military defense attorney. Call (888) 367-9489 for a free and confidential consultation.
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Joseph L. Jordan is a Military Defense Lawyer serving all six branches of the Armed Forces.
