MCM on Article 87 Missing Movement

Article 87 -- Missing movement 2005 MCM Article 87-11 a. Text. "Any person subject to this chapter who through neglect or design misses the movement of a ship, aircraft, or unit with which he is required in the course of duty to move shall be punished as a court-martial may direct." b. Elements. (1) That the accused was required in the course of duty to move with a ship, aircraft or unit; (2) That the accused knew of the prospective movement of the ship, aircraft or unit; (3) That the accused missed the movement of the ship, aircraft or unit; and (4) That the accused missed the movement through design or neglect. c. Explanation. (1) Movement. "Movement" as used in Article 87 includes a move, transfer, or shift of a ship, aircraft, or unit involving a substantial distance and period of time. Whether a particular movement is substantial is a question to be determined by the court-martial considering all the circumstances. Changes which do not constitute a "movement" include practice marches of a short duration with a return to the point of departure, and minor changes in location of ships, aircraft, or units, as when a ship is shifted from one berth to another in the same shipyard or harbor or when a unit is moved from one barracks to another on the same post. (2) Mode of movement. (a) Unit. If a person is required in the course of duty to move with a unit, the mode of travel is not important, whether it be military or commercial, and includes travel by ship, train, aircraft, truck, bus, or walking. The word "unit" is not limited to any specific technical category such as those listed in a table of organization and equipment, but also includes units which are created before the movement with the intention that they have organizational continuity upon arrival at their destination regardless of their technical designation, and units intended to be disbanded upon arrival at their destination. (b) Ship, aircraft. If a person is assigned as a crew member or is ordered to move as a passenger aboard a particular ship or aircraft, military or chartered, then missing the particular sailing or flight is essential to establish the offense of missing movement. (3) Design. "Design" means on purpose, intentionally, or according to plan and requires specific intent to miss the movement. (4) Neglect. "Neglect" means the omission to take such measures as are appropriate under the circumstances to assure presence with a ship, aircraft, or unit at the time of a scheduled movement, or doing some act without giving attention to its probable consequences in connection with the prospective movement, such as a departure from the vicinity of the prospective movement to such a distance as would make it likely that one could not return in time for the movement. (5) Actual knowledge. In order to be guilty of the offense, the accused must have actually known of the prospective movement that was missed. Knowledge of the exact hour or even of the exact date of the scheduled movement is not required. It is sufficient if the approximate date was known by the accused as long as there is a causal connection between the conduct of the accused and the missing of the scheduled movement. Knowledge may be proved by circumstantial evidence. (6) Proof of absence. That the accused actually missed the movement may be proved by documentary evidence, as by a proper entry in a log or a morning report. This fact may also be proved by the testimony of personnel of the ship, aircraft, or unit (or by other evidence) that the movement occurred at a certain time, together with evidence that the accused was physically elsewhere at that time. d. Lesser included offenses. (1) Design. (a) Article 87 -- missing movement through neglect (b) Article 86 -- absence without authority (c) Article 80 -- attempts (2) Neglect. Article 86 -- absence without authority e. Maximum punishment. (1) Design. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. 2 (2) Neglect. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year. f. Sample specification. In that (personal jurisdiction data), did, (at/on board -- location), on or about 20 , through (neglect) (design) miss the movement of (Aircraft No. ) (Flight ) (the USS ) (Company A, 1st Battalion, 7th Infantry) ( ) with which he/she was required in the course of duty to move. 3