Missing movement. UCMJ Art. 87

The offense of missing movement is a relative newcomer to military criminal law, arising from problems encountered in World War II when members of units or crews failed to show up when their units or ships departed. Article 87 was designed to cover offenses more serious than simple AWOL but less severe than desertion. United States v. Smith, 2 M.J. 566 (A.C.M.R. 1976), aff’d, 4 M.J. 210 (C.M.A. 1978) (not discussing the missing movement offense).

Elements. MCM, pt. IV, 11.b

1. That the accused was required in the course of duty to move with a ship, aircraft or unit;
2. That he knew of the prospective movement of the ship, aircraft, or unit;
3. That the accused missed the movement; and
4. That the missed movement was either through design or neglect.

Two Forms of Missing Movement

1. Through design.
   1. “Design” refers to doing an act intentionally or on purpose. It requires specific intent to miss the movement. MCM, pt. IV,  11.c.(3).
   2. Missing movement through design, the more serious offense, has a maximum punishment of dishonorable discharge, total forfeitures, and confinement for two years. MCM, pt. IV, 11.e.(1).
2. Through neglect.
   1. “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. MCM, pt. IV, 11.c.(4).
   2. The maximum punishment for missing movement through neglect is a bad conduct discharge, total forfeitures, and confinement for one year. MCM, pt. IV, 11.e.(2).

General Requirements

1. “Movement” includes neither practice marches of short duration with a return to the point of departure nor minor changes in location of a unit such as from one side of a post to another. MCM, pt. IV, 11c(1). Movement missed must be substantial in terms of duration, distance and mission. Thus, missing a port call for MAC flight constituted missing movement of an aircraft within meaning of Article 87. United States v. Graham, 16 M.J. 460 (C.M.A. 1983); United States v. Blair, 24 M.J. 879 (A.C.M.R. 1987) aff’d, 27 M.J. 438 (C.M.A. 1988). But see United States v. Gibson, 17 M.J. 143 (C.M.A. 1984) (failure to report for an ordinary commercial flight does not constitute missing movement as it is not the type of movement contemplated by Article 87).
2. In a case involving missing movement involving a civilian aircraft, the government must show that the accused was required to travel on that aircraft. United States v. Kapple, 40 M.J. 472 (C.M.A. 1994).
3. The accused must have actual knowledge of the prospective movement. Knowledge of the exact hour or even of the exact date of the movement is not required. MCM, pt. IV, 11c(5).
4. The accused’s knowledge may be shown by circumstantial evidence. United States v. Chandler, 48 C.M.R. 945 (C.M.A. 1974) (reversing conviction because the evidence was legally insufficient to prove actual knowledge).
5. Some authority supports the proposition that UCMJ Article 87 does not reach every instance in which a service member misses a movement but is applicable only when the accused has an essential mission related to the movement, e.g., is an integral member of the unit or crew whose absence would potentially disrupt the mission. Compare United States v. Gillchrest, 50 C.M.R. 832 (A.F.C.M.R. 1975) (finding that service member missing a commercial aircraft to Turkey as part of PCS did not meet Congressional intent behind the missing movement offense) and United States v. Smith, 2 M.J. 566 (A.C.M.R. 1976) aff’d, 4 M.J. 210 (C.M.A. 1978) (holding that missing movement to site of two-day bivouac 12 miles downrange did not constitute missing movement; “[h]ard and fast rules relating to the duration, distance and mission of the ‘movement’ are not appropriate, but rather those factors plus other concomitant circumstances must be considered collectively, in order to evaluate the potential disruption of the unit caused by a soldier’s absence”), with United States v. Lemley, 2 M.J. 1196 (N.C.M.R. 1976) (holding that accused, who was being escort from brig and missed specific Pan Am flight listed on orders, did miss “movement”) and United States v. St. Ann, 6 M.J. 563 (N.C.M.R. 1978)(holding that missing a commercial flight while on orders constitutes missing movement even when the accused is not a member of the crew or traveling with his unit).
6. Going AWOL and proceeding to a place more than 1200 miles away was a failure to exercise due care contemplated in missing movement through neglect. United States v. Mitchell, 3 M.J. 641 (A.C.M.R. 1977).
7. Missing a two-week winter exercise that took place on the same installation as the unit’s location in Alaska supported missing a movement by design. United States v. Jones, 37 M.J. 571 (A.C.M.R. 1993).
8. An eight-hour “dependent’s cruise” by aircraft carrier is not a “minor” change in the location of the ship. The focus of the statutory prohibition is upon the movement itself, and not its purpose. United States v. Quezada, 40 M.J. 109 (C.M.A. 1994).
9. An essential element of missing movement is that the movement actually occurred. This element may be inferred if the accused holds a ticket for a regularly scheduled commercial flight. United States v. Kapple, 36 M.J. 1119 (A.F.C.M. R. 1993), rev’d on other grounds, 40 M.J. 472 (C.M.A. 1994).
10. Missing the move, rather than a particular mode of travel, is the gravamen of missing movement. United States v. Smith, 26 M.J. 276 (C.M.A. 1988).
11. Military judge erred by using the accused’s plea of guilty to AWOL as evidence to establish an essential element of a separate charge of missing movement to which a plea of not guilty had been entered. United States v. Wahnon, 1 M.J. 144 (C.M.A. 1975).

Multiplicity and Lesser included Offenses

1. An accused cannot be punished for both AWOL of minimal duration and missing movement through neglect or through design when the same absence forms the basis for both charges. United States v. Baba, 21 M.J. 76 (C.M.A. 1985); United States v. Posnick, 24 C.M.R. 11 (C.M.A. 1957); United States v. Bridges, 25 C.M.R. 383 (C.M.A. 1958). See also United States v. Traxler, 39 M.J. 476 (C.M.A. 1994) (finding that missing movement of aircraft and disobedience of an officer’s order to board the aircraft were not multiplicious).
2. An AWOL of extended duration is not multiplicious with missing movement. United States v. Olinger, 47 M.J. 545 (N-M. Ct. Crim. App. 1997), aff’d, 50 M.J. 365 (C.A.A.F. 1999).
3. Failure to repair is a lesser included offense of missing movement. United States v. Smith, 2 M.J. 566 (A.C.M.R. 1976), aff’d, 4 M.J. 210 (C.M.A. 1978).