Any person subject to this chapter who—

resists apprehension;

flees from apprehension;

breaks arrest; or

escapes from custody or confinement;

That a certain person attempted to apprehend the accused;

That said person was authorized to apprehend the accused; and

That the accused actively resisted the apprehension.

That a certain person attempted to apprehend the accused;

That said person was authorized to apprehend the accused; and

That the accused fled from the apprehension.

That a certain person ordered the accused into arrest;

That said person was authorized to order the accused into arrest; and

That the accused went beyond the limits of arrest before being released from that arrest by proper authority.

That a certain person apprehended the accused;

That said person was authorized to apprehend the accused; and

That the accused freed himself or herself from custody before being released by proper authority.

That a certain person ordered the accused into confinement;

That said person was authorized to order the accused into confinement; and

That the accused freed himself or herself from confinement before being released by proper authority.

[Note: If the escape was post-trial confinement, add the following element]

That the confinement was the result of a court-martial conviction.

Apprehension is the taking of a person into custody. See R.C.M. 302.

See R.C.M. 302(b) concerning who may apprehend. Whether the status of a person authorized that person to apprehend the accused is a question of law to be decided by the military judge. Whether the person who attempted to make an apprehension had such a status is a question of fact to be decided by the factfinder.

The resistance must be active, such as assaulting the person attempting to apprehend. Mere words of opposition, argument, or abuse, and attempts to escape from custody after the apprehension is complete, do not constitute the offense of resisting apprehension although they may constitute other offenses.

It is a defense that the accused held a reasonable belief that the person attempting to apprehend did not have authority to do so. However, the accused’s belief at the time that no basis exists for the apprehension is not a defense.

A person may not be convicted of resisting apprehension if the attempted apprehension is illegal, but may be convicted of other offenses, such as assault, depending on all the circumstances. An attempted apprehension by a person authorized to apprehend is presumed to be legal in the absence of evidence to the contrary. Ordinarily the legality of an apprehension is a question of law to be decided by the military judge.

The flight must be active, such as running or driving away.

There are two types of arrest: pretrial arrest under Article 9 (see R.C.M. 304) and arrest under Article 15 (see subparagraph 5.c.(3), Part V, MCM). This article prohibits breaking any arrest.

See R.C.M. 304(b) and paragraph 2 and subparagraph 5.b., Part V, MCM concerning authority to order arrest.

In arrest, the restraint is moral restraint imposed by orders fixing the limits of arrest.

Breaking arrest is committed when the person in arrest infringes the limits set by orders. The reason for the infringement is immaterial. For example, innocence of the offense with respect to which an arrest may have been imposed is not a defense.

A person may not be convicted of breaking arrest if the arrest is illegal. An arrest ordered by one authorized to do so is presumed to be legal in the absence of some evidence to the contrary. Ordinarily, the legality of an arrest is a question of law to be decided by the military judge.

Custody is restraint of free locomotion imposed by lawful apprehension. The restraint may be physical or, once there has been a submission to apprehension or a forcible taking into custody, it may consist of control exercised in the presence of the prisoner by official acts or orders. Custody is temporary restraint intended to continue until other restraint (arrest, restriction, confinement) is imposed or the person is released.

See subparagraph (1)(b) of this paragraph.

For a discussion of escape, see subparagraph c.(5)(c) of this paragraph.

A person may not be convicted of this offense if the custody was illegal. An apprehension effected by one authorized to apprehend is presumed to be lawful in the absence of evidence to the contrary. Ordinarily, the legality of an apprehension is a question of law to be decided by the military judge.

See paragraph 13.

Confinement is physical restraint imposed under R.C.M. 305, 1102, or subparagraph 5.b., Part V, MCM. For purposes of the element of post-trial confinement (subparagraph b.(5)(d)) and increased punishment therefrom (subparagraph e.(4)), the confinement must have been imposed pursuant to an adjudged sentence of a court-martial and not as a result of pretrial restraint or nonjudicial punishment.

See R.C.M. 304(b), 1102(b)(2); and paragraph 2 and subparagraph 5.b., Part V, MCM concerning who may order confinement.

An escape may be either with or without force or artifice, and either with or without the consent of the custodian. However, where a prisoner is released by one with apparent authority to do so, the prisoner may not be convicted of escape from confinement. See also subparagraph 24.c.(2)(b). Any completed casting off of the restraint of confinement, before release by proper authority, is an escape, and lack of effectiveness of the restraint imposed is immaterial. An escape is not complete until the prisoner is momentarily free from the restraint. If the movement toward escape is opposed, or before it is completed, an immediate pursuit follows, there is no escape until opposition is overcome or pursuit is eluded.

A prisoner who is temporarily escorted outside a confinement facility for a work detail or other reason by a guard, who has both the duty and means to prevent that prisoner from escaping, remains in confinement.

A person may not be convicted of escape from confinement if the confinement is illegal. Confinement ordered by one authorized to do so is presumed to be lawful in the absence of evidence to the contrary. Ordinarily, the legality of confinement is a question of law to be decided by the military judge.

Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.

Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.

Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.

Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.

Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, resist being apprehended by __________, (an armed force policeman) (__________), a person authorized to apprehend the accused.

In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, flee apprehension by __________, (an armed force policeman) (__________), a person authorized to apprehend the accused.

In that __________ (personal jurisdiction data), having been placed in arrest (in quarters) (in (his) (her) company area) (__________) by a person authorized to order the accused into arrest, did, (at/on board— location) on or about _____ 20 __, break said arrest.

In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, escape from the custody of __________, a person authorized to apprehend the accused.

In that __________ (personal jurisdiction data), having been placed in (post-trial) confinement in (place of confinement), by a person authorized to order said accused into confinement did, (at/on board— location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, escape from confinement.