A missing movement charge under Article 87 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. 887, often raises the question whether the accused failed to move with a ship, aircraft, or unit on purpose or merely through carelessness. Prosecutors sometimes want to introduce the accused’s earlier misconduct to argue a “pattern” of avoiding duty. Whether that evidence comes in depends entirely on how it is offered. Military law forbids using prior misconduct to show that the accused is the kind of person who would miss a movement, but it allows that evidence for certain limited, non-propensity purposes.
The elements that frame the inquiry
To convict under Article 87, the government must prove that the accused was required in the course of duty to move with a ship, aircraft, or unit; that the accused knew of the prospective movement; and that the accused missed the movement through design or neglect. “Design” means a specific intent to miss the movement, while “neglect” means a culpable failure to take the reasonable measures necessary to be present. The mental state is therefore the contested issue in many cases, and that is exactly where prior misconduct evidence becomes tempting for the prosecution.
The general bar on propensity evidence
Military Rule of Evidence (MRE) 404(b) controls. It provides that evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with that character. In plain terms, the government cannot offer earlier instances of skipping formations or avoiding deployments to argue that the accused has a bad character and therefore probably missed this movement on purpose. Using prior acts to show a propensity to miss movements is precisely what the rule prohibits, and “pattern” framed as character is not a lawful purpose.
The permissible non-propensity purposes
The same rule lists purposes for which prior acts may be admissible, including proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. This is where the genuine line is drawn. If prior conduct is relevant to the accused’s intent or to rebut a claim of accident or mistake, rather than to brand the accused as a habitual shirker, it may be admissible. For example, evidence that the accused previously took deliberate steps to avoid a known movement could be relevant to whether the present absence was by design rather than innocent neglect, and could rebut a defense that the accused simply lost track of the time or date.
How “pattern” can be lawful or unlawful
The word “pattern” is the source of much confusion. A true plan or modus operandi, a connected scheme to evade duty, can sometimes be admissible to show intent or a common design. But the government may not relabel ordinary propensity reasoning as “pattern” to slip it past the rule. The distinction is whether the prior acts logically prove a specific permissible fact, such as intent, without depending on the forbidden inference that the accused is simply the type of person who misses movements. Military judges and appellate courts scrutinize this carefully.
The three-step admissibility analysis
Even when offered for a proper purpose, prior misconduct must survive a structured analysis. First, the evidence must be offered for a purpose other than character or propensity. Second, the act must be supported by enough proof that a reasonable member could find the accused committed it. Third, the probative value must not be substantially outweighed by the danger of unfair prejudice, confusion, or misleading the panel under MRE 403. Because uncharged misconduct is inherently prejudicial, the balancing step is often decisive, and a judge may exclude even technically relevant acts if their main effect would be to inflame the panel.
Limiting instructions and safeguards
If the judge admits prior acts for a limited purpose, the defense is entitled to a limiting instruction telling the panel it may consider the evidence only for the permitted purpose, such as intent, and not as proof of character. Defense counsel should request that instruction, contest the government’s stated purpose, and press the MRE 403 balancing argument. Counsel can also demand that the government articulate precisely how each prior act proves a fact other than propensity.
Bottom line
Prior misconduct cannot be introduced in a missing movement prosecution to prove a “pattern” in the sense of showing the accused has a propensity to miss movements. That use violates MRE 404(b). The evidence may be admissible for a genuine non-propensity purpose, such as proving design or intent or rebutting a claim of mistake, but only if it survives the requirement of a proper purpose, sufficient proof of the act, and the MRE 403 balancing test, usually with a limiting instruction. Anyone facing an Article 87 charge where the government seeks to use past conduct should consult experienced military defense counsel to challenge the purpose and the prejudice.
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.
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