UCMJ Article 87: Missing Movementand Related Custody Offenses
At Bilecki Law Group, we defend service members against missing movement charges under Article 87 of the UCMJ and related apprehension, custody and restriction charges under Articles 87a and 87b. Our AWOL defense lawyers handle these cases worldwide.
Accused of missing a deployment, flight or ship’s movement? Contact Bilecki Law Group for a free consultation before giving a statement about what happened.
What Is Article 87 of the UCMJ?
Article 87 covers missing the movement of a ship, aircraft or unit that you were required to move with in the course of duty. It also covers wrongfully and intentionally jumping from a vessel used by the armed forces into the water. Resisting or fleeing apprehension, breaking arrest and escaping custody or confinement fall under Article 87a. Correctional custody and restriction offenses fall under Article 87b.
These charges can arise from very different situations. Missing a deployment raises questions about your orders, what you knew and why you were absent. An escape or restriction allegation raises questions about the authority to restrain you, the limits imposed and what you actually did. Missing movement does not always mean you deliberately took off. The government can allege either design or neglect, and that distinction matters.
Regardless of the charge, take the accusation seriously. For an enlisted member, every offense discussed here except breach of restriction lists a punitive discharge in its maximum punishment. Breach of restriction still carries possible confinement, loss of pay and reduction in grade, and it can have consequences beyond the sentence for that charge.
How Do You Fight a Missing Movement Charge?
Please don’t make the mistake of assuming the prosecution won’t seek the maximum punishment. Military order and discipline matter, and a missed movement can bring serious scrutiny. That does not relieve the government of proving each charged offense. We examine the accusation before accepting the command’s explanation of what happened.
Start With the Actual Movement
Not every missed formation, bus ride or trip across an installation qualifies as movement under Article 87. The Manual for Courts-Martial looks at a substantial distance and a substantial period of time, considering all the circumstances. The Manual excludes examples such as a short practice march followed by return to the starting point and shifting a ship between berths in the same harbor.
THE MANUAL LOOKS AT
- A substantial distance
- A substantial period of time
- All the circumstances
EXCLUDED EXAMPLES
- A short practice march followed by return to the starting point
- Shifting a ship between berths in the same harbor
We examine the movement orders, itinerary and assignment records. Were you required to move with that particular ship, aircraft or unit? Were you ordered onto a specific flight, or ordered to reach a destination with transportation arrangements left open? What movement actually occurred? The answers can determine whether the government has charged the right offense. Whether the unit completed its mission without you does not, by itself, answer those questions.
Find Out What You Actually Knew
The government must prove actual knowledge of the prospective movement, although it can use circumstantial evidence. It does not always have to prove you knew the exact departure hour or even the exact date. Knowledge of an approximate date can be enough when your conduct caused you to miss the movement. We compare the orders and briefings with messages, schedule changes, acknowledgments and witness accounts to determine what reached you and when.
Separate Intentional Conduct From Neglect
Missing movement through design means you specifically intended to miss it. Missing movement through neglect concerns a failure to take appropriate measures or give proper attention to the probable consequences. Forgetting a departure does not automatically defeat a neglect allegation. On the other hand, an empty place on a passenger manifest does not explain why you were absent or prove an intent to avoid the movement.
Through design
You specifically intended to miss it
Max: 2 years, dishonorable discharge
Through neglect
A failure to take appropriate measures or give proper attention
Max: 1 year, bad-conduct discharge
A medical emergency, transportation failure or mistaken instruction needs investigation, not a label. We look for medical records, travel records, contemporaneous messages and the people who saw what happened. Did the event actually prevent you from reporting? Was it beyond your control, or did your own conduct create the problem? An inability defense requires an inability through no fault of your own. A claimed misunderstanding must also be tested against the particular knowledge or intent the government must prove.
Preserve the complete messages, orders and travel records, including material that looks unfavorable. Do not delete an exchange, alter a record or ask someone to change a statement. Get advice from defense counsel before trying to explain the allegation to investigators. A useful defense starts with what happened, not a cleaned-up version of it.
Make the Government Prove Each Additional Charge
You may also be facing charges arising from the incident that led to an apprehension or restriction. Beating an escape, resistance or missing movement allegation can reduce what remains in the case, even when another accusation presents a real problem. We evaluate each charge and the total exposure together.
If you were caught passed out drunk on the company commander’s desk, you could have a serious problem. That still does not establish that you actively resisted apprehension or fled from anyone. We push back on an additional charge when the facts do not support it. The point is, you fight the prosecution at every turn where the facts and law give you a fight.
Deal Honestly With the Evidence
Sometimes the strongest issue is whether the government can prove design rather than neglect. Sometimes it is whether a movement occurred at all. Other cases call for negotiating the charges, forum or sentence. Absence without leave under Article 86 and an attempt under Article 80 may raise separate questions; neither should be treated as an automatic fallback in every Article 87 case. Any lesser-offense theory must fit the actual charge, the evidence and Article 79. Your service history can matter in negotiations or sentencing, but it does not replace a defense to the elements.
Related result: Marine Charged with Attempt to Miss Deployment Receives Summary Court-Martial Disposition. This case concerns a malingering charge involving an alleged effort to miss a deployment. Past results do not guarantee a similar outcome.
What Must the Prosecution Prove?
Below are the separate requirements for missing movement and the related offenses. The prosecution must prove the elements of the charged offense beyond a reasonable doubt. These are explanations of those requirements, with the punishment reference collected afterward.
Article 87(a): Missing Movement
- You were required in the course of duty to move with a particular ship, aircraft or unit.
- You knew of the prospective movement.
- You missed that movement through design or neglect.
Article 87(b): Jumping From a Vessel Into the Water
- You jumped into the water from a vessel in use by the armed forces.
- The act was wrongful and intentional.
The vessel may be at sea, at anchor or in port. The Manual also cautions that bona fide suicide attempts should not be charged under this provision. The reason for the jump and the surrounding circumstances need careful examination.
Article 87a: Resisting Apprehension
- Someone attempted to apprehend you.
- That person was authorized to apprehend you.
- You actively resisted the apprehension.
Words alone, even argument or verbal abuse, are not active resistance under this offense. Other conduct and other charges may present different issues. We examine the person’s authority, the legality of the apprehension and what you actually did.
Article 87a: Fleeing Apprehension
- Someone attempted to apprehend you.
- That person was authorized to apprehend you.
- You fled from that apprehension.
This requires flight from an attempted apprehension. Being absent somewhere else is not, by itself, proof that you fled from an authorized person trying to apprehend you.
Article 87a: Breaking Arrest
- You were ordered into arrest.
- The person issuing the order was authorized to do so.
- You went beyond the limits of that arrest before proper authority released you.
Arrest here can mean an order restricting you to specified limits, without physical restraint. We examine the order, whether it was lawful, how its limits were communicated and any claimed misunderstanding. Being innocent of the underlying accusation does not, by itself, permit you to disregard a lawful arrest.
Article 87a: Escape From Custody
- Someone apprehended you.
- That person was authorized to apprehend you.
- You freed yourself from custody before proper authority released you.
Custody does not always require handcuffs. It can involve control maintained through orders after an apprehension. An escape also does not always require force. The circumstances of the restraint, any continuing pursuit and any actual authorization to leave matter.
Article 87a: Escape From Confinement
- You were placed in confinement by someone’s order.
- That person was authorized to order the confinement.
- You freed yourself from confinement before proper authority released you.
For the greater maximum applicable to confinement following a court-martial conviction, the government must also establish that the confinement resulted from that conviction. Pretrial confinement and confinement imposed under Article 15 carry the lower maximum shown below.
Article 87b(a): Escape From Correctional Custody
- You were placed in correctional custody.
- The person imposing it was authorized to do so.
- You were under physical restraint in that correctional custody.
- You freed yourself from the physical restraint before proper authority released you.
Correctional custody is a punishment that may be imposed under Article 15. It is distinct from pretrial confinement and from an ordinary order restricting where you may go.
Article 87b(b): Breach of Correctional Custody
- You were placed in correctional custody.
- The person imposing it was authorized to do so.
- You were restrained by means other than physical restraint.
- You went beyond the limits imposed before proper authority released you from the custody or relieved you of the restraint.
Article 87b(c): Breach of Restriction
- You were ordered to remain within specified limits.
- The person imposing the restriction was authorized to do so.
- You knew of the restriction and its limits.
- You went beyond those limits before proper authority released you.
What Punishment Can You Face?
Missing movement through design carries a maximum of two years of confinement, a dishonorable discharge and forfeiture of all pay and allowances. Through neglect, the maximum is one year of confinement, a bad-conduct discharge and forfeiture of all pay and allowances. Reduction to E-1 may also be available for an enlisted member. These are authorized maximums, not automatic sentences.
| Offense | Maximum confinement | Maximum punitive discharge for enlisted members | Applicable confinement parameters |
|---|---|---|---|
| Missing movement through design | 2 years | Dishonorable discharge | Category 2: 1–24 months after applying the offense maximum |
| Missing movement through neglect | 1 year | Bad-conduct discharge | Category 1: 0–12 months |
| Jumping from a vessel into the water | 6 months | Bad-conduct discharge | Category 1: 0–6 months after applying the offense maximum |
| Resisting or fleeing apprehension | 1 year | Bad-conduct discharge | Category 1: 0–12 months |
| Breaking arrest | 6 months | Bad-conduct discharge | Category 1: 0–6 months after applying the offense maximum |
| Escape from custody | 1 year | Dishonorable discharge | Category 1: 0–12 months |
| Escape from pretrial confinement or confinement imposed under Article 15 | 1 year | Dishonorable discharge | Category 1: 0–12 months |
| Escape from confinement resulting from a court-martial conviction | 5 years | Dishonorable discharge | Category 2: 1–36 months |
| Escape from correctional custody | 1 year | Dishonorable discharge | Category 1: 0–12 months |
| Breach of correctional custody | 6 months | Bad-conduct discharge | Category 1: 0–6 months after applying the offense maximum |
| Breach of restriction | 1 month | None under this offense maximum | Category 1: 0–1 month after applying the offense maximum |
All offenses in the table except breach of restriction authorize forfeiture of all pay and allowances. Breach of restriction authorizes forfeiture of two-thirds pay per month for one month. Reduction in grade may be available for enlisted members.
Punitive separation depends on status and forum. A general court-martial may dismiss a commissioned officer, including a commissioned warrant officer, or a cadet or midshipman for any offense. It may also adjudge a dishonorable discharge for a warrant officer who is not commissioned, regardless of the offense’s listed discharge maximum. Dishonorable discharge and dismissal require a general court-martial. A bad-conduct discharge and reduction in grade apply only to enlisted members. The forum and an accepted plea agreement may impose lower limits.
When the sentencing parameters apply. The parameters generally apply in noncapital general and special courts-martial when all offenses of conviction occurred on or after 28 December 2023. Category 1 ordinarily spans zero to 12 months and Category 2 one to 36 months, subject to a lower offense maximum. A military judge may depart when the governing standard is met and must explain the departure in writing. A range is not a prediction of your sentence; the maximum for one offense is not necessarily the maximum exposure for the entire case. Earlier offenses require analysis under the rules that apply to their dates.
An Aggressive Offense Is the Best Defense Against the UCMJ
At Bilecki Law Group, we take the fight right to the heart of the military justice system. We do our own investigation, and we prepare to challenge the government’s witnesses on what they saw, what they were told and what their accounts leave out. We have no reservations about rocking the boat when your defense calls for it. The objective is to expose a weakness that matters to your case, whether at trial or in negotiations.
We’ll always shoot you straight on what you are facing. If breach of restriction is the only allegation, we will explain its limits and take an honest look at what representation the situation calls for. A month of confinement or a reduction in rank can still matter a hell of a lot to the person facing it. If you didn’t do it and you want to fight like hell, we’re ready to talk.
Missing movement and related custody charges can add serious punishment to a case that is already difficult. Gear up for a fight, and get us into it. Give us a call, send us a message and let’s talk about what you are facing today.