Article 87 of the Uniform Code of Military Justice punishes missing movement, the offense of failing, through neglect or design, to be present for the scheduled departure of a ship, aircraft, or unit with which the service member is required to move. Reservists called up for mobilization frequently ask whether this article applies to them when they fail to appear for the transport that is supposed to take them to their mobilization site. The general answer is yes, a reservist can be subject to Article 87, but only if the member was actually subject to the UCMJ at the relevant time and the other elements of the offense are met. The jurisdictional question comes first.
Jurisdiction Comes Before the Offense
The threshold issue for any UCMJ charge against a reservist is jurisdiction. Only persons subject to the UCMJ may be tried under it. Reserve and National Guard members are not continuously subject to the code in the way active duty members are. They generally fall within UCMJ jurisdiction when they are in a federal duty status, such as while serving on active duty or, in defined circumstances, while in inactive-duty training under federal authority.
Mobilization is the event that typically brings a reservist into a federal active-duty status, but the timing matters enormously. Whether a reservist who fails to show for mobilization transport is subject to the UCMJ depends on whether the orders had taken effect and the member had entered a status that subjects them to the code at the moment of the failure. A member who has been validly ordered to active duty and whose duty status has begun may be subject to the code; a member whose status has not yet attached presents a harder question. This is the first thing competent counsel will examine, because if jurisdiction is lacking, the missing movement charge cannot stand regardless of the conduct.
The Elements of Missing Movement
Assuming jurisdiction exists, missing movement under Article 87 has a defined structure. The government must prove that the accused was required to move with a ship, aircraft, or unit; that the accused knew of the prospective movement; that the accused missed the movement; and that the missing of the movement was through the accused’s design or neglect.
Several points follow. The movement at issue must be the kind Article 87 covers, a substantial movement of a ship, aircraft, or unit, rather than a trivial or routine relocation. The accused must have known a movement was scheduled. And the failure must be either by design, meaning intentional, or by neglect, meaning a failure to take the measures a reasonable person would take to be present. Missing movement by design is the more serious form and carries a greater maximum punishment than missing movement by neglect.
For a reservist failing to appear for mobilization transport, the practical questions are whether the transport qualifies as a movement of a unit, aircraft, or ship within the meaning of the article; whether the member knew of the scheduled departure; and whether the failure was willful or negligent rather than caused by something outside the member’s control.
Reservists Are Within the Statute’s Reach
Subject to the jurisdictional requirement, reservists and National Guard members serving under federal orders are within the reach of Article 87. There is no categorical exemption for reserve component members. A mobilized reservist who, while subject to the UCMJ, knowingly and through design or neglect fails to be present for the movement they are required to make can be charged with missing movement just as an active duty member could.
This reflects the purpose of the article. Missing movement is treated seriously because the failure of even one member to deploy with a unit can disrupt operations and readiness. That concern applies with full force to mobilization, where reserve forces are being assembled and moved to meet operational requirements.
How Article 87 Differs From Absence Offenses
It is useful to distinguish missing movement from the absence offenses, because a single set of facts may implicate more than one article. Absence without leave under Article 86 punishes unauthorized absence generally. Desertion under Article 85 requires a specific intent, such as the intent to remain away permanently. Missing movement under Article 87 is tied specifically to failing to be present for a required movement and turns on knowledge of the movement and on design or neglect. A reservist who fails to show for mobilization transport might be analyzed under more than one of these provisions, and the appropriate charge depends on the precise facts and the member’s state of mind.
Practical Guidance for Reservists
A reservist concerned about a missing movement issue should first focus on the status question: when did the orders take effect, and what duty status was the member in at the time of the alleged failure. They should preserve any documentation about the orders, the scheduled transport, notice they received, and any circumstances, such as emergencies or logistical failures, that prevented their appearance. They should be cautious about making statements regarding why they did not appear, because the difference between neglect and design, and the existence of a valid excuse, can shape both the charge and the outcome. And they should consult a qualified military defense attorney, who can evaluate jurisdiction and the elements in light of the specific facts.
Bottom Line
Reservists can be subject to Article 87 for failing to show for mobilization transport, but only when they were actually subject to the UCMJ at the time, which depends on whether their federal duty status had attached. If jurisdiction exists, the government must still prove that the member was required to move, knew of the movement, missed it, and did so by design or neglect. Because the jurisdictional timing and the state-of-mind elements are decisive and fact specific, a reservist facing such a charge should seek advice from a military defense attorney promptly.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
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