ARTICLE 87 MISSING MOVEMENT

Article 87 deals with persons who have missed moving with their assigned ship, unit or aircraft either accidentally or deliberately. Under this article, the accused shall be given punishment as directed by a court martial.

The elements of the alleged violation of Article 87 that a prosecutor must prove under Article 87 charge are:

  • That the accused was assigned to a specific unit/ aircraft/ ship and was required to move with it.
  • That the accused was aware that the unit/ ship/ aircraft would move at a specific time.
  • That he missed this movement of the unit/ ship/ aircraft.
  • That he missed it either deliberately or through negligence.

WHAT IS THE MAXIMUM PUNISHMENT GRANTED UNDER ARTICLE 87?

Maximum punishment may differ if the accused missed the movement by accident or by design. For missing the movement deliberately, the accused faces dishonorable discharge, forfeiture of all allowances and pay and 2 years confinement as maximum punishment. For missing the movement through negligence, he faces bad conduct discharge, forfeiture of allowances and pay and one year’s confinement as maximum punishment.

EXPLANATION OF ARTICLE 87

This article covers the failure of a person to move with the unit, ship, or aircraft that he is assigned to. These charges may be filed against the person if the movement involved a change in location over a substantial distance and substantial time. For example, if the person has failed to report when his ship is moved from one berth to another, or his unit moves from one barracks to another he cannot be charged under this punitive article.

POINTS TO NOTE ABOUT ARTICLE 87

  • Under Article 87 ‘movement’ does not refer to short marches or small changes in the location of the unit/ aircraft or ship, but to movement over a significant distance and involving a substantial time period.
  • It is not necessary to prove that the accused was aware of the exact time and place of departure of the ship, aircraft, or unit. It is sufficient for the prosecution to prove that he was aware of the general time and location and that his conduct at the time was the cause of missing the movement.
  • The prosecution can use circumstantial evidence to prove that the accused had knowledge of movement.
  • In United States v. Kapple, 36 M.J. 1119 (A.F.C.M. R. 1993), it was deemed that an essential element in missing movement charges is that the movement actually occurred. In other-words, in order to prove someone guilty of missing movement, than the unit, ship or aircraft had to have actually left for its intended destination.
  • It may be possible for the defense attorney to get his client acquitted on the grounds that he was not an integral member of the crew and that his missing the movement did not materially impact the military operation.
  • It is necessary to give proof of absence of the accused in these trials and this needs to be done by producing documentary evidence or by getting the testimony of the ship, unit or aircraft’s personnel along with proof that the accused was elsewhere at the time of the movement

EXAMPLE OF ARTICLE 87 INCIDENCE

Determining if a particular act constitutes ‘missing movement’ as outlined under the Article 87 of UCMJ may pose challenges. In the United States v. Blair, 24 M.J. 879 (A.C.M.R. 1987) trial, missing a MAC flight port call was deemed to be ‘missing movement’. In the United States v. Gibson, 17 M.J. 143 (C.M.A. 1984) trial, it was deemed that missing the movement of a commercial flight cannot be termed as ‘missing movement’ under Article 87. It is important to note that the accused may be able to defend himself on the grounds that his missing the movement did not disrupt military operations. In the United States v. Kapple, 40 M.J. 472 (C.M.A. 1994) trial, it was clarified further that the prosecution has to show that the accused was required to be on a civilian aircraft that he missed.