UCMJ ARTICLE 87: MISSING MOVEMENT

Executive Summary

Key Takeaway: UCMJ Article 87 criminalizes missing the movement of a ship, aircraft, or unit with which a service member is required to move. The offense requires proof that the accused missed the movement through design (specific intent to miss the movement) or through neglect (culpable failure to take reasonable measures to be present). Maximum punishment for missing movement by design includes dishonorable discharge, total forfeiture of all pay and allowances, reduction to lowest enlisted grade, and confinement for 2 years. Maximum punishment for missing movement by neglect includes bad conduct discharge, total forfeiture of all pay and allowances, reduction to lowest enlisted grade, and confinement for 1 year. For offenses committed on or after 27 December 2023, sentencing parameter limits apply.

What Article 87 Covers: Missing the scheduled departure of a ship to which the service member is assigned through intentional avoidance or culpable failure to take reasonable measures. Deliberately or negligently missing departure of an aircraft on which the service member is manifested for official travel, or purposefully failing to deploy with a unit when orders require the service member to move. Intentionally or negligently missing transportation for deployment or permanent change of station.

Critical Article 87 Elements: Missing movement can be proven through design (specific intent to miss movement) or through neglect (culpable failure to take reasonable measures to be present for movement). The service member must have been required to move with the ship, aircraft, or unit through assignment, orders, or other proper authority. The movement must have actually occurred. Knowledge of the movement time and place is required for both design and neglect theories. Through design requires specific intent to miss the movement at the time of absence, while through neglect requires culpable failure to take reasonable measures without requiring proof of intent to miss.

Why Article 87 Cases Present Unique Challenges: Distinguishing specific intent (design) from culpable negligence (neglect) affects charging decisions and maximum punishment exposure significantly. Proving whether absence resulted from intentional avoidance versus carelessness versus genuine accident requires careful analysis of timing and conduct. Deployment-related movements carry heightened command attention creating risk of overcharging, and service members may have missed movement through circumstances beyond their control which negates both design and neglect theories.

Immediate Steps if Under Investigation: Exercise your right to remain silent under Article 31(b) if questioned about missing a movement or your reasons for absence during scheduled movement. Do not attempt to explain your state of mind or actions before the movement without defense counsel present. Preserve all documentation related to movement orders, transportation arrangements, communications about movement timing, and consult with experienced military defense counsel immediately.

If you are under investigation for missing movement or have been charged under Article 87, contact Joseph L. Jordan at (888) 643-6254 immediately. Early legal intervention can result in reduced charges (neglect instead of design, or unauthorized absence instead of missing movement), potentially reducing maximum punishment exposure significantly.

Understanding UCMJ Article 87

Article 87 of the Uniform Code of Military Justice addresses missing movement of ships, aircraft, or units. This provision criminalizes failing to be present for required military movements, whether through intentional avoidance (design) or culpable failure to take reasonable measures to be present (neglect). Article 87 reflects the critical importance the military places on reliable presence for operational movements where individual absences can compromise mission capability, burden other service members, and undermine unit readiness.

The policy behind Article 87 recognizes that movements of military units, ships, and aircraft often involve complex logistics, precise timing, and operational necessity. Service members who intentionally miss these movements or who culpably fail to take reasonable steps to be present create operational gaps, require last-minute personnel substitutions, and may leave units undermanned during critical operations. Effective defense of missing movement charges requires experienced military representation.

Elements of Article 87

To obtain a conviction for missing movement under Article 87, the prosecution must prove four elements beyond a reasonable doubt.

Element 1: The accused was required in the course of duty to move with a ship, aircraft, or unit

The government must establish that the accused had a duty to move with the particular ship, aircraft, or unit. This requirement typically arises from permanent assignment to ship or unit, temporary duty assignment requiring movement, attachment for operational purposes, or inclusion on official movement rosters. The requirement may come from permanent change of station orders, deployment orders, movement orders for exercises or operations, or official placement on aircraft manifests.

The requirement must be official and binding. Casual presence, volunteer status without official orders, or mere expectation of movement without formal requirement generally does not satisfy this element.

Element 2: The accused knew of the prospective movement of the ship, aircraft, or unit

Knowledge is required for both design and neglect theories. The accused must have known that a movement was scheduled, the approximate time of the movement, the location from which movement would occur, and that they were required to be present for the movement.

Knowledge is typically established through written orders provided to the accused, formation briefs or unit notifications, manifesting procedures, prior movements following similar patterns, participation in movement preparation activities, or direct communications about movement details. If the accused genuinely did not know of the movement or its timing, the knowledge element is not satisfied. However, willful blindness or deliberate avoidance of information may constitute knowledge.

Knowledge that a general movement might occur eventually is insufficient. The accused must have known of the specific movement they are charged with missing, including sufficient detail about timing and location to either form intent to miss it or have opportunity to take reasonable measures to be present.

Element 3: The accused missed the movement of the ship, aircraft, or unit

The government must prove the movement actually occurred, the accused was not present for the movement, and the absence was not excused or authorized.

If the ship, aircraft, or unit did not move as scheduled, no missing movement can occur. Cancellations, indefinite delays, or movements that did not take place mean the offense cannot be completed. However, if movement occurred even with delay, missing movement may still be charged. The accused must not have been present when the movement departed. Being late but still departing with the movement generally does not constitute missing movement though it may result in other consequences.

If proper authority excused the accused from the movement or authorized their absence through emergency leave, medical waivers, or other proper authorizations, no violation occurred.

Element 4: The accused missed the movement through design or through neglect

This is the critical element that distinguishes Article 87 and determines maximum punishment. The government may prove either design or neglect.

Through Design

Through design means with specific intent to miss the movement. The government must prove the accused specifically intended to miss the movement at the time they became absent or failed to appear. Through design is established when the accused deliberately absented themselves to avoid the movement, intentionally failed to take steps to be present, knew of the movement and purposefully avoided it, or made conscious decision not to be present for deployment.

Through design is not established by accidental oversleeping or transportation problems without intent, emergency situations preventing presence despite intent to deploy, genuine mistakes about movement timing, carelessness or negligence in preparation, or initially intending to be present but circumstances preventing it.

Because direct evidence of intent is rare, prosecutors typically rely on circumstantial evidence. Timing of absence provides evidence when the accused absents immediately before scheduled movement or maintains extended absence covering the movement period. Pre-movement statements expressing unwillingness to deploy, statements to family or friends about not deploying, or post-movement explanations acknowledging intent provide evidence of design. Conduct such as taking steps to avoid notification about movement, failing to participate in pre-deployment preparations, missing required pre-deployment processing, removing property from ship or unit before movement, or establishing civilian employment before movement supports intent findings.

Return timing also provides evidence. Returning shortly after movement departed, remaining absent for deployment duration then returning, or immediate return after learning movement canceled suggests intent to avoid deployment. Pattern of prior attempts to avoid deployment or history of missing movements provides additional evidence of design.

Through Neglect

Through neglect means culpable failure to take reasonable measures to be present for the movement. Neglect does not require proof of specific intent to miss the movement. Instead, it focuses on whether the accused culpably failed to take reasonable precautions to ensure presence.

Neglect is established when the accused failed to take reasonable measures to ensure timely presence, engaged in conduct making presence unlikely or impossible, departed to distance or location from which timely return was not reasonably possible, failed to arrange reliable transportation when required, engaged in activities with foreseeable risk of preventing timely presence, or disregarded obvious risks to being present on time.

Examples include traveling significant distance from duty location shortly before movement knowing return time would be tight, failing to arrange backup transportation despite unreliable primary transportation, consuming alcohol to extent impairing ability to wake or travel on time, ignoring obvious risk factors that reasonable person would address, or failing to set multiple alarms or arrange wake-up when important movement scheduled.

Neglect is not established by genuine accidents beyond the accused's control, reasonable measures that failed due to unforeseeable circumstances, emergency situations preventing presence, transportation failures despite reasonable backup arrangements, or circumstances that no reasonable person could have anticipated or prevented.

The critical question is whether the accused's failure to be present was culpable. If the accused took all reasonable measures but unforeseeable circumstances prevented presence, this is accident, not neglect. If the accused failed to take measures that a reasonable person would have taken, this is neglect. Neglect requires only culpable failure to take reasonable measures, not specific intent to miss movement.

Maximum Punishment Under Article 87

Article 87 violations carry different maximum penalties depending on whether missing movement was through design or through neglect.

Missing Movement Through Design: Dishonorable discharge, forfeiture of all pay and allowances, reduction to lowest enlisted grade, and confinement for 2 years.

Missing Movement Through Neglect: Bad conduct discharge, forfeiture of all pay and allowances, reduction to lowest enlisted grade, and confinement for 1 year.

Actual sentences depend on whether charged as design or neglect, circumstances of the missing movement, whether accused eventually deployed, operational impact of absence, reason for missing movement, the accused's service record, whether absence was brief or extended, and deployment destination and mission.

For offenses committed on or after 27 December 2023, maximum punishments are subject to sentencing parameters established by Executive Order 14103 pursuant to the Military Justice Act of 2016. Under this category-based system, actual maximum confinement may be limited by the sentencing category regardless of traditional Article 87 maximums. Consult with defense counsel regarding applicable category limits for specific cases.

Beyond court-martial sentences, missing movement convictions create federal criminal records affecting security clearances, VA benefits eligibility, civilian employment opportunities, and professional licensing. Punitive discharges result in loss of most veterans' benefits.

Defenses to Article 87 Charges

Defending missing movement charges focuses on challenging the mental state element and demonstrating lack of culpability.

Lack of specific intent: If the accused did not specifically intend to miss the movement, Article 87 (design) charges should fail. Defense may establish the absence was accidental through oversleeping without intent, transportation failure despite good faith efforts, emergency preventing timely arrival, or genuine mistake about movement time or location. Defense may show the accused intended brief absence and timely return but circumstances prevented return despite intent, or the absence was motivated by factors other than avoiding deployment such as mental health crisis or personal emergency. Intent must be proven beyond reasonable doubt. If evidence equally supports accidental absence and intentional avoidance, the government has not met its burden for design.

Took reasonable measures: If the accused took all reasonable measures to be present, Article 87 (neglect) charges should fail. Defense may establish the accused arranged reliable transportation with backup plans, set multiple alarms and arranged wake-up calls, departed with adequate time considering known factors, and took steps reasonable person would take in circumstances. Defense may show unforeseeable circumstances arose that no reasonable person could anticipate, any failure to take measures was not culpable, the accused exercised reasonable care and judgment, and measures taken were appropriate to circumstances.

Lack of knowledge: If the accused did not know of the movement or its timing, the knowledge element fails for both design and neglect. Defense may establish movement orders were not provided to accused, the accused was not present for movement notifications, conflicting information about movement timing existed, the accused reasonably believed movement was canceled or postponed, or no official notification of requirement to move was given.

Not required to move: If the accused was not officially required to move with the ship, aircraft, or unit, the first element fails. Defense may establish the accused was not assigned or attached to the unit, orders did not require movement with this particular ship or unit, the accused was properly excused from movement, or administrative error placed accused on movement roster incorrectly.

Movement did not occur: If the ship, aircraft, or unit did not actually move as charged, no missing movement occurred. Defense may establish movement was canceled, movement was indefinitely postponed, different movement occurred than alleged, or timing of actual movement differs from charged timeframe.

Impossibility or circumstances beyond control: If circumstances beyond the accused's control prevented presence despite intent and reasonable measures, this may negate both design and neglect. Defense may establish serious illness or injury preventing travel, civilian incarceration preventing presence, natural disaster or emergency preventing travel, family emergency requiring immediate attention, or hospitalization or medical emergency occurred. The accused must demonstrate they took all possible steps to notify command and be present despite circumstances.

Authorized absence: If proper authority authorized the accused's absence from the movement, no violation occurred. Defense may establish emergency leave was properly granted, medical waiver from deployment was issued, administrative hold for legitimate reasons existed, or command authorization to miss movement for official duty was given.

Mental health crisis: If the accused lacked capacity to form specific intent (for design) or to appreciate need for reasonable measures (for neglect) due to mental health condition, defense may establish documented mental health emergency at time of movement, diagnosed condition affecting ability to form intent or exercise judgment, psychological crisis preventing rational decision-making, or expert testimony regarding mental state and capacity.

Defending service members against missing movement and other military charges requires comprehensive understanding of the distinction between intentional avoidance and culpable negligence, thorough analysis of circumstantial evidence, and strategic presentation of defenses.

Your Rights During Missing Movement Investigations

Service members under investigation for missing movement retain important constitutional and statutory protections.

Before any questioning you must receive Article 31 warnings protecting rights. These warnings inform you that you are suspected of an offense, the nature of the suspected offense, you have the right to remain silent, and any statements you make may be used against you in court-martial proceedings.

You have the right to consult with defense counsel before and during questioning. This includes right to appointed military defense counsel at no cost, right to retain civilian counsel at your own expense, right to have counsel present during any questioning, and right to stop questioning at any time to consult with counsel.

You cannot be compelled to provide incriminating statements. Silence cannot be used as evidence of guilt. This protection applies throughout investigation and prosecution. You are protected against unreasonable searches and seizures. Investigators must have proper authorization to search your belongings, electronic devices, or other property.

The Importance of Early Legal Consultation

Missing movement cases often turn on statements made immediately upon return or during initial investigation. Attempts to explain absence or claim accident frequently establish the intent or neglect elements prosecutors need.

Consulting with experienced military defense counsel at the earliest indication of missing movement investigation provides critical benefits. Counsel evaluates whether evidence supports design, neglect, or only unauthorized absence, significantly affecting maximum punishment exposure. Early presentation of evidence showing lack of specific intent or that reasonable measures were taken may result in reduced charges from design to neglect or to unauthorized absence. If absence was related to mental health crisis, early evaluation may negate specific intent or culpable neglect. Counsel ensures no statements are made that inadvertently establish intent or neglect while attempting to show accident or emergency. Counsel preserves evidence of emergency circumstances, transportation problems, reasonable measures taken, or other factors negating culpability.

When You Should Contact Defense Counsel

Consult with military defense counsel immediately if you are questioned about missing a movement, you missed a movement and command is investigating, you are absent and a movement is scheduled, you returned after missing a movement, command indicates you will be charged with missing movement, you missed deployment processing or pre-deployment requirements, or investigators are examining your pre-movement statements or conduct. Early consultation with qualified defense counsel protects your legal rights. The earlier you consult counsel, the better positioned you are to achieve the best possible outcome.

Why Choose Joseph L. Jordan for Article 87 Defense

Joseph L. Jordan is a former Army Judge Advocate with extensive experience defending service members in military court-martial proceedings. As a former military prosecutor, he understands how the government attempts to prove specific intent or culpable neglect in missing movement cases, and how to challenge that evidence effectively.

Our defense approach includes thorough analysis of all evidence to challenge design findings and support neglect or unauthorized absence as the appropriate charge. For neglect allegations, we document all reasonable measures taken to be present, demonstrating lack of culpable failure. We systematically address each piece of circumstantial evidence, presenting alternative innocent explanations for timing, statements, and conduct. We coordinate mental health assessments to evaluate capacity to form specific intent or exercise reasonable judgment. We negotiate with prosecutors for reduction from design to neglect or to unauthorized absence when evidence of specific intent or culpable failure is weak. We present compelling evidence of emergency circumstances, mental health factors, reasonable efforts, eventual deployment, and positive service record.

We represent service members worldwide at every stage of missing movement investigation and prosecution.

Immediate Steps if You Are Under Investigation

If you are being investigated for missing movement, invoke your right to remain silent and do not explain your absence, state of mind, reasons for missing movement, or steps you took without defense counsel present. State clearly: "I wish to exercise my right to remain silent under Article 31 and consult with defense counsel before answering questions."

Do not attempt to justify absence. Attempts to explain emergency, accident, or reasonable measures often inadvertently establish knowledge and mental state elements. Preserve all evidence including documentation of movement orders, transportation arrangements, emergency circumstances, medical issues, steps taken to be present, or any other evidence relevant to your absence and mental state.

Do not discuss the missed movement or your reasons for absence with other service members who may be interviewed by investigators. Contact defense counsel immediately by calling (888) 643-6254 to speak with Joseph L. Jordan about your case. Early consultation protects your rights and may result in substantially reduced charges.

Frequently Asked Questions About UCMJ Article 87

What is missing movement under Article 87?

Missing movement is failing to be present for the scheduled departure of a ship, aircraft, or unit with which a service member is required to move, when the failure is through design (with specific intent to miss the movement) or through neglect (culpable failure to take reasonable measures to be present).

What is the difference between design and neglect?

Through design requires specific intent to miss the movement and carries maximum 2 years confinement and dishonorable discharge. Through neglect requires culpable failure to take reasonable measures to be present, does not require specific intent, and carries maximum 1 year confinement and bad conduct discharge.

What elements must prosecutors prove for Article 87 conviction?

Prosecutors must prove the accused was required to move with a ship, aircraft, or unit, the accused knew of the prospective movement, the accused missed the movement, and the accused missed the movement through design (specific intent) or through neglect (culpable failure to take reasonable measures).

How do prosecutors prove intent to miss movement?

For design, intent is typically proven through circumstantial evidence including timing of absence (immediately before movement), statements expressing unwillingness to deploy, conduct avoiding movement preparation, return timing (shortly after movement departed), pattern of avoiding deployments, and failure to take steps to be present. For neglect, prosecutors prove culpable failure to take reasonable measures such as failing to arrange adequate transportation or engaging in conduct making presence unlikely.

What is the maximum punishment for missing movement?

By design: dishonorable discharge, total forfeiture of all pay and allowances, reduction to E-1, and confinement for 2 years. By neglect: bad conduct discharge, total forfeiture of all pay and allowances, reduction to E-1, and confinement for 1 year. For offenses after 27 December 2023, sentencing category limits may apply.

Can someone accidentally miss movement?

Yes. Accidentally missing movement due to unforeseeable circumstances despite taking reasonable measures constitutes unauthorized absence, not missing movement. If the accused took reasonable measures but unforeseeable circumstances prevented presence, this is accident not culpable neglect.

What are the main defenses to missing movement charges?

Main defenses include lack of specific intent (for design, absence was accidental or for reasons other than avoiding movement), took reasonable measures (for neglect, accused took all reasonable steps to be present), lack of knowledge of movement details, not required to move with the ship/aircraft/unit, movement did not occur as alleged, and impossibility or circumstances beyond control prevented presence despite intent and reasonable efforts.

Can missing movement charges be reduced?

Yes. Through negotiation or at trial, charges may be reduced from design to neglect (reducing maximum from 2 years to 1 year) or to unauthorized absence (potentially reducing maximum to 6-18 months depending on duration). These reductions significantly affect maximum punishment exposure.

What is the difference between missing movement by design and by neglect?

Design requires specific intent to miss the movement and results in harsher maximum punishment (2 years, dishonorable discharge). Neglect requires culpable failure to take reasonable measures without requiring specific intent and results in lesser maximum punishment (1 year, bad conduct discharge). Both are more serious than simple unauthorized absence.

Does missing a deployment always result in missing movement charges?

No. If the service member took reasonable measures but unforeseeable circumstances prevented presence, or if they were absent for reasons unrelated to avoiding the movement without culpable failure, unauthorized absence may be the appropriate charge. Article 87 requires either specific intent or culpable failure to take reasonable measures.

What if emergency prevented presence at movement?

If genuine emergency arose preventing presence despite intent to be present and reasonable measures taken, this may negate both design and neglect. The accused must demonstrate they took all possible steps to notify command. Documentation of emergency and efforts is critical.

What role do pre-movement statements play?

Pre-movement statements expressing unwillingness to deploy or intent to miss movement are powerful evidence of design. Statements about concerns, stress, or difficulties without expressing intent to miss movement may support neglect or accident theories. Such statements should never be made, and if made, should not be repeated without counsel.

Should someone facing missing movement charges talk to investigators?

No. Exercise Article 31(b) rights and consult with defense counsel immediately. Attempts to explain absence, show it was accidental, or demonstrate reasonable measures often inadvertently provide evidence of knowledge, intent, or failure to take adequate measures.

How does mental health affect missing movement cases?

Mental health crisis preventing formation of specific intent may negate design charges. Mental health conditions impairing ability to appreciate need for reasonable measures or exercise judgment may negate neglect charges. Documented mental health conditions provide complete defense or significant mitigation. Early mental health evaluation is critical.

What are lesser included offenses of missing movement?

For missing movement by design, lesser included offenses include missing movement by neglect and unauthorized absence. For missing movement by neglect, the lesser included offense is unauthorized absence. If the greater offense cannot be proven, conviction for lesser included offense may result.

For immediate consultation regarding Article 87 charges or investigations, contact Joseph L. Jordan at (888) 643-6254. Experienced military defense representation for service members worldwide.

Important Notice: This information is provided for educational purposes and does not constitute legal advice. Every case involves unique facts requiring individualized legal analysis. Reading this information does not create an attorney-client relationship. For advice specific to your situation, consult with a qualified military defense attorney.