Several offenses under the Uniform Code of Military Justice turn on a required movement. The clearest example is missing movement under Article 87, which punishes a service member who, through neglect or design, misses the movement of a ship, aircraft, or unit with which the member is required in the course of duty to move. Charges for disobeying the order that directed the movement may instead arise under Article 90 or Article 92. In each of these settings, a common defense question surfaces: was the movement, and the order that set it in motion, lawful and properly ordered in the first place? Courts answer that question by examining the source of the requirement to move, the authority behind it, and whether the order met the standards that make any military order enforceable.
The movement must be a required movement in the course of duty
For an Article 87 missing movement charge, the prosecution must prove that the accused was required, in the course of duty, to move with a specific ship, aircraft, or unit; that the accused knew of the prospective movement; and that the accused missed it through design or neglect. The phrase “required, in the course of duty, to move” is doing real work. The duty to move with the unit must arise from the member’s actual assignment or orders, not from a vague expectation. Courts look at whether competent orders, a movement directive, or the member’s standing assignment in fact obligated this member to depart with this conveyance or unit. If the member was never properly attached to the movement or had no duty to be aboard, the predicate for the charge fails.
A “movement” for these purposes also has a threshold of substance. It generally means a substantial relocation of a unit or transport, such as a deployment or a ship getting underway, rather than a routine, local, or administrative shift. Courts distinguish a genuine movement requiring the member’s presence from minor repositioning that does not carry the same duty.
Lawfulness and proper issuance of the underlying order
Where the case rests on an order, for example a deployment order or an order to report for a movement, the lawfulness of that order is squarely in play. Military orders enjoy a presumption of lawfulness, and the burden rests on the accused to rebut it. To be lawful and enforceable, an order must satisfy several requirements that courts examine in combination.
First, the order must issue from competent authority, meaning a superior or office with the authority to direct the movement of this member. An order from someone without command or proper delegated authority over the member does not bind. Second, the order must have a valid military purpose. A directive connected to readiness, deployment, training, or mission accomplishment readily satisfies this requirement, while one that serves a private or improper end does not. Third, the order must be sufficiently clear and specific to inform the member what is required, when, and where. Fourth, the order must not conflict with the Constitution, statutes, or the member’s established legal rights, and it must not direct the commission of an unlawful act.
How the lawfulness question is decided procedurally
The legality of an order is a question of law for the military judge, not a question of fact for the panel. When a defense contends that the movement order was unlawful or improperly issued, the judge resolves that legal question, often on a motion, by examining the issuing authority, the documentation, and the purpose and clarity of the order. If the judge determines the order was lawful, that determination frames the case for the members, who then decide the factual elements such as knowledge and whether the member missed the movement through design or neglect. If the judge finds the order unlawful, the charge built on it cannot stand.
Knowledge, not knowledge of every detail
A frequent point of contention is what the member had to know. For missing movement, the government must show the accused had actual knowledge of the prospective movement, but it need not prove the accused knew the precise hour or even the exact date. Courts look at whether the member knew a movement was coming and whether the member’s conduct, by design or through a failure to take reasonable measures, caused the member to miss it. This knowledge inquiry is distinct from the lawfulness inquiry: a member may know of a movement that was unlawfully ordered, and a member may have been lawfully ordered to a movement of which the member was genuinely unaware. Both questions must be resolved.
Design versus neglect
Because the standard of culpability affects the offense and its punishment, courts also parse whether the missed movement was by design or by neglect. Design means an intentional choice to miss the movement, reflecting a specific intent. Neglect means a failure to take reasonable measures to be present, including conduct so careless that missing the movement was the natural and foreseeable result. The lawfulness of the movement is a separate question from this mental-state determination, but the two often arise together at trial, since a member contesting culpability may also challenge whether the movement was properly ordered at all.
Bottom line
Courts evaluate whether a movement was lawful and properly ordered by asking whether the member had a genuine, duty-based obligation to move with the specified ship, aircraft, or unit, and whether any order directing the movement issued from competent authority, served a valid military purpose, was clear and specific, and did not violate law or the member’s rights. The order carries a presumption of lawfulness that the accused must rebut, and the military judge decides the legal question while the panel resolves the factual elements of knowledge and culpability. A movement built on an unlawful or improperly issued order cannot support a conviction that depends on it.
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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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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