NOTE 1: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT: BCD, TF, 6 months, E-1. (Category 1)
b. SAMPLE SPECIFICATION:
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 __________, break said arrest.
c. ELEMENTS:
(1) That (state the name and status of the person ordering the accused into arrest) ordered the accused into arrest (in quarters) (in his/her company area) (__________);
(2) That (state the name and status of the person ordering the accused into arrest) was authorized to order the accused into arrest; (and)
(3) That (state the time and place alleged), the accused went beyond the limits of arrest before being released from that arrest by proper authority; [and]
NOTE 2: Knowledge of arrest status raised. If there is any evidence from which it may justifiably be inferred that the accused may not have known of his/her arrest and its limits, give the element below:
[(4)] That the accused knew of (his) (her) arrest and its limits.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
NOTE 3: Types of Arrest. There are two types of arrest: pretrial arrest under Article 9, UCMJ, and arrest in quarters under Article 15, UCMJ. If the accused is alleged to have broken pretrial arrest, give the definition below:
Arrest is restraint imposed upon a person by oral or written orders of competent authority, not imposed as punishment for an offense, directing that person to remain within certain specified limits pending disposition of charges. The restraint imposed is binding upon the person arrested because of (his) (her) moral and legal obligation to obey the order of arrest.
NOTE 4: Arrest in Quarters. If the accused is alleged to have broken arrest in quarters, give the definition below:
An officer undergoing arrest in quarters as nonjudicial punishment is required to remain within that officer’s quarters during the period of punishment unless the limits of arrest are otherwise extended by appropriate authority. The quarters of an officer may consist of a military residence, whether a tent, stateroom, or other quarters assigned, or a private residence when government quarters have not been provided.
NOTE 5: Lawfulness of arrest in issue. Ordinarily, the legality of the arrest is a question of law to be decided by the military judge. A commissioned or warrant officer may be ordered into pretrial arrest by a commanding officer with authority over the arrestee. Rules for Courts-Martial 304(b) (1). An enlisted person may be ordered into pretrial arrest by any commissioned officer, or a warrant, noncommissioned, or petty officer when authorized to do so by a commanding officer with authority over the arrestee. Rules for Courts-Martial 304(b) (2) and (3). An officer may be ordered into arrest in quarters as nonjudicial punishment by an officer exercising general court-martial jurisdiction, a general officer in command, or a principal assistant to an officer exercising general court-martial jurisdiction or a general officer in command. Paragraphs 2c and 5b, Part V, Manual for Courts-Martial. The military judge resolves, as an interlocutory question, whether a certain status would authorize that person to place the accused in arrest and whether the arrest was lawful. The fact finder decides whether the person who placed the accused in arrest actually had such a status. When there is an issue as to whether the person who ordered the accused into arrest actually occupied a position that authorized him to do so, the following instruction may be appropriate. The military judge should tailor the instruction based upon the rank of the accused.
An accused may not be convicted of breaking arrest unless the person who placed the accused in arrest was authorized to order the accused into arrest.
You may find the accused guilty of breaking arrest only if you are satisfied beyond a reasonable doubt that (state the name of the person who ordered the accused into arrest) held the status of (a commanding officer with authority over the accused) (a commissioned officer) (a [warrant] [noncommissioned] officer authorized to arrest the accused by a commanding officer with authority over the accused) ([an officer exercising general court-martial jurisdiction] [a general officer in command] [a principal assistant to (an officer exercising general court-martial jurisdiction) (a general officer in command)]) at the time that he/she ordered the accused into arrest.
NOTE 6: Other instructions. If the 4th element is given, Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable. Consider whether Instruction 5-13, Ignorance or Mistake of Fact or Law—General Discussion (General Intent), should be given as well.