Article 86 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. 886, addresses absence without leave, the broad family of offenses in which a service member, through the member’s own fault, fails to be at the appointed place of duty at the prescribed time, leaves a place of duty, or is absent from the unit, organization, or place of duty. Article 87, codified at 10 U.S.C. 887, addresses missing movement, which occurs when a member, through design or neglect, misses the movement of a ship, aircraft, or unit with which the member is required to move in the course of duty. A common question is whether one incident can give rise to charges under both articles. The answer is generally yes. The two articles protect different interests and have different elements, so the same course of conduct can support both an Article 86 specification and an Article 87 specification. But that ability is constrained by the doctrines of multiplicity and unreasonable multiplication of charges, which a military judge can use to limit how the charges are treated.
The two offenses are distinct
The starting point is that Article 86 and Article 87 are not the same offense and do not require proof of the same facts. Article 86 reaches unauthorized absence in general. It does not require that any movement was scheduled or missed; it is enough that the member was, through fault, not where the member was required to be. Article 87 is narrower and more specific. It requires that the member was required in the course of duty to move with a particular ship, aircraft, or unit, that the member knew of the prospective movement, and that the member missed that movement through design or neglect.
Because each offense contains an element the other lacks, they are legally separate. Article 87 requires a scheduled movement, knowledge of it, and a failure to make it; Article 86 does not. Article 86 can be committed without any movement being involved at all. This separateness is why the government may, as a matter of pleading, charge both arising from a single episode, for example where a member fails to show up for a deployment flight and then remains absent afterward.
A single episode can contain conduct reaching both articles
Consider a service member who knows the unit is scheduled to deploy on a particular aircraft, intentionally does not report for the flight, and then stays away from the unit for several days. The failure to make the flight, through design or neglect, fits Article 87 missing movement. The continuing unauthorized absence that follows fits Article 86. Although these flow from one underlying decision to avoid duty, they describe distinguishable conduct: missing the specific movement and being absent without authority over a period of time. In that situation the government can plead both, and convictions on both can stand if each is supported by the evidence and the charges are not improperly duplicative.
The limits: multiplicity and unreasonable multiplication of charges
The ability to charge both is not unlimited. Two related doctrines police it.
The first is multiplicity, which is grounded in the constitutional protection against double jeopardy. Multiplicity asks whether what appears to be two offenses is really one for double jeopardy purposes, typically analyzed by whether each charged offense requires proof of an element the other does not. Where two offenses are separate under that test, charging both does not offend double jeopardy. Because Article 86 and Article 87 each contain a distinct element, they ordinarily survive a pure multiplicity challenge.
The second doctrine, unreasonable multiplication of charges, is broader and is uniquely important in military practice. It rests on the principle in the Rules for Courts-Martial that what is substantially one transaction should not be made the basis for an unreasonable multiplication of charges against a single accused. Unlike multiplicity, it is based on reasonableness and prosecutorial fairness rather than the Constitution, so charges can be legally separate yet still be unreasonably multiplied. Military courts assess this using a set of factors drawn from the case law, commonly associated with United States v. Quiroz, including whether the accused objected at trial, whether each charge is aimed at distinctly separate criminal acts, whether the number of charges misrepresents or exaggerates the accused’s criminality, whether the charges unreasonably increase the punitive exposure, and whether there is any evidence of prosecutorial overreaching or abuse in the drafting of the charges.
Available remedies when charging is excessive
If a military judge finds that charging both Article 86 and Article 87 for what is essentially one transaction is unreasonable, several remedies are available. The judge may dismiss one specification, may merge the offenses for findings, or may merge them for sentencing so that the maximum punishment is capped at that of the more serious single offense rather than the combined total of both. These tools let the court acknowledge the distinct legal character of the offenses while preventing the accused from being punished twice over for what is realistically one act of avoiding duty. The defense raises the issue by motion, and preserving the objection at trial is itself one of the factors courts weigh.
How the conduct’s structure affects the outcome
Whether both charges ultimately survive often depends on how separable the conduct is. Where the missed movement and the unauthorized absence are genuinely distinct, for instance a missed deployment flight followed by a multiday absence, the case for sustaining both is strong because they target separate criminal acts. Where the only conduct is the failure to make a single movement, with no meaningful additional period of absence, charging both may look like slicing one act into two, and a court is more likely to find an unreasonable multiplication and grant relief. The facts, in other words, drive the result.
Practical guidance for the accused
A member facing charges under both articles for one incident should have defense counsel scrutinize the charge sheet for both multiplicity and unreasonable multiplication of charges, and should object at trial if the charges appear to carve a single transaction into duplicative specifications. Counsel will examine whether the alleged missed movement and the alleged absence are truly separate, what the combined punitive exposure is, and whether the charging decision exaggerates the criminality involved. Even where both charges are legally permissible, a well-supported motion can lead to merger or a reduced sentencing ceiling.
Conclusion
A service member can be charged under both Article 86 and Article 87 for the same incident, because absence without leave and missing movement are distinct offenses with different elements. That said, the doctrines of multiplicity and, more practically, unreasonable multiplication of charges constrain the practice, and a military judge can dismiss or merge charges, or cap the punishment, when one transaction has been unreasonably split. The outcome turns on how separable the conduct really is. A member facing both charges should consult qualified military defense counsel to evaluate whether to challenge the charging decision.
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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