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: DD, TF, 1 year, E-1. (Category 1)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did, (at/on board--location), on or about __________, escape from the custody of __________, a person authorized to apprehend the accused.
c. ELEMENTS:
(1) That (state the name and status of the person who apprehended the accused) apprehended the accused;
(2) That (state the name and status of the person who apprehended the accused) was authorized to apprehend the accused; and
(3) That (state the time and place alleged), the accused freed (himself) (herself) from custody before being released by proper authority.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
“Apprehension” means taking a person into custody; that is, placing a restraint on a person’s freedom of movement. The restraint may be physical and forcible. Restraint may also be imposed by clearly informing the person being apprehended, either orally or in writing, that (he) (she) is being taken into custody, if followed by the accused’s submission to the apprehending authority. Once a person has submitted to an apprehension or has been forcibly taken into custody, continuing custody may consist of control exercised in the presence of the prisoner by official acts or orders.
NOTE 2: Lawfulness of apprehension at issue. Ordinarily, the military judge resolves, as an interlocutory question, whether a certain status would authorize that person to apprehend the accused and whether the apprehension was lawful. The fact finder decides whether the person who attempted to make the apprehension actually had such a status. Escape from a person not authorized to apprehend is not an offense under this article. Military affiliated law enforcement officials and commissioned, warrant, petty, and noncommissioned officers may lawfully apprehend any person subject to the Uniform Code of Military Justice. Article 7c, Uniform Code of Military Justice. Manual for Courts-Martial, Rules for Courts-Martial 302(b). A civil officer who has the authority to apprehend offenders under the laws of the United States or a state, territory, commonwealth, or the District of Columbia may lawfully apprehend a deserter from the armed forces. Article 8, UCMJ. (In such cases, the military judge must determine as a matter of law that the reason for the apprehension was, inter alia, because the accused was suspected of desertion.) When there is an issue as to whether the person who apprehended the accused actually occupied a position that authorized him to apprehend the accused, the following instruction may be appropriate:
An accused may not be convicted of this offense unless the person who apprehended (him) (her) was authorized to apprehend the accused.
As a matter of law, a [military or military affiliated law enforcement official] [(commissioned) (warrant) (petty) (noncommissioned) officer] [police officer] [constable] [highway patrolman] [__________] was authorized to apprehend the accused at the time of the alleged offense.
However, you may find the accused guilty of this offense only if you are satisfied beyond a reasonable doubt that the person who apprehended the accused actually was a (military or military affiliated law enforcement official) ([commissioned] [warrant] [petty] [noncommissioned] officer) ([police officer] [constable] [highway patrolman] [__________]) at the time of the apprehension.
NOTE 3: Escape from confinement and custody distinguished. Though escape from confinement and custody both include throwing off of lawful restraint, confinement and custody are different in nature. Confinement must be actually imposed to initiate confinement status. See US v. Edwards, 69 MJ 375 (CAAF 2011); US v. Ellsey, 37 CMR 75 (CMA 1966) (proper charge is escape from custody, not escape from confinement, when an accused who has been ordered into confinement escapes prior to being placed in a confinement facility); cf. US v. Felty, 12 MJ 438 (CMA 1982) (proper charge is escape from confinement when an accused, after having been placed in a confinement facility, escapes from a guard while outside the confinement facility for a magistrate hearing. Once confined in a military confinement facility, an accused remains in that status until released from confinement by proper authority).