NOTE 1: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT:
(1) Through design: DD, TF, 2 years, E-1. (Category 2)
(2) Through neglect: BCD, TF, 1 year, E-1. (Category 1)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, through (neglect) (design) miss the movement of (Aircraft No. __________) (Flight __________) (the USS __________) (Company A, 1st Battalion, 7th Infantry) (__________) with which (he) (she) was required in the course of duty to move.
c. ELEMENTS:
(1) That the accused was required in the course of duty to move with a (ship) (aircraft) (unit), to wit: (state the ship, aircraft, or unit alleged);
(2) That the accused knew of the prospective movement of the (ship) (aircraft) (unit); and
(3) That (state the time and place alleged), the accused missed the movement of the (aircraft) (unit) (ship) through (design) (neglect).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
“Movement” includes a move, transfer, or shift of a ship, aircraft, or unit involving a substantial distance and period of time. “Movement” does not include practice marches of a short duration with a return to the point of departure, and minor changes in location of ships, aircraft, or units.
(“Movement” may also mean the deployment of one or more individual service members as passengers aboard military or civilian aircraft or watercraft in conjunction with temporary or permanent changes of duty assignments.)
(Failure of a service member to make a routine movement aboard commercial transportation, however, does not violate Article 87 when such failure is unlikely to cause foreseeable disruption of military operations.)
To be guilty of this offense, the accused must have actually known of the prospective movement that was missed. (Knowledge of the exact hour or even of the exact date of the scheduled movement is not required. It is sufficient if the accused knew the approximate date as long as there is a causal connection between the conduct of the accused and the missing of the scheduled movement.) Knowledge may be proved by circumstantial evidence.
NOTE 2: If “through design” alleged. If “through design” is alleged, give the following:
“Through design” means on purpose, intentionally, or according to plan and requires specific intent to miss the movement.
NOTE 3: If “through neglect” alleged. If “through neglect” is alleged, give the following:
“Through neglect” means the omission to take such measures as are appropriate under the circumstances to assure presence with a ship, aircraft, or unit at the time of a scheduled movement, or doing some act without giving attention to its probable consequences in connection with the prospective movement, such as a departure from the vicinity of the prospective movement to such a distance as would make it likely that one could not return in time for the movement.
NOTE 4: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable. If missing movement through design alleged, Instruction 7-3, Circumstantial Evidence (Intent), will ordinarily be applicable.
e. REFERENCES: US v. Quezada, 40 MJ 109 (CMA 1994); US v. Gibson, 17 MJ 143 (CMA 1984); US v. Graham, 16 MJ 460 (CMA 1983); US v. Johnson, 11 CMR 174 (CMA 1953).