Blogs from June, 2019

Absence Without Leave (AWOL)

There are multiple punitive articles that deal with military members who leave their place of duty without authorization. Several articles deal with specific instances of unauthorized absence. For example, Article 85 deals with Desertion, which includes such conduct as leaving a place of duty without authority and with the intent to remain away permanently; or Article 95, which punishes sentinels or lookouts on duty who leave their post without being relieved. But given that the military is committed to good order and discipline, the UCMJ also provides a general prohibition against being absent from a place of duty without authorization in any circumstance.

Article 86 prohibits absence without leave – colloquially known as AWOL. Per the UCMJ, Article 86 “is designed to cover every case not elsewhere provided for in which any member of the armed forces is . . . not at the place where the member is required to be at a prescribed time.” This article ranges from a general failure to appear at an appointed place of duty to more serious conduct such as abandoning a watch, guard, or duty post. Article 86 charges may be adjudicated at non-judicial punishment (NJP) or court-martial.

Elements

For an unauthorized absence to be punishable under the UCMJ, the Government must prove the following elements depending on specific absence alleged:

1. Failure to go to appointed place of duty.
   • That a certain authority appointed a certain time and place of duty for the accused;
   • That the accused knew of that time and place; and
   • That the accused, without authority, failed to go to the appointed place of duty at the time prescribed.
2. Going from appointed place of duty.
   • That a certain authority appointed a certain time and place of duty for the accused;
   • That the accused knew of that time and place; and
   • That the accused, without authority, went from the appointed place of duty after having reported at such place.
3. Absence from unit, organization, or place of duty.
   • That the accused absented himself or herself from his or her unit, organization, or place of duty at which he or she was required to be;
   • That the absence was without authority from anyone competent to give him or her leave; and
   • That the absence was for a certain period of time.
   • That the absence was terminated by apprehension [If applicable].
4. Abandoning watch or guard.
   • That the accused was a member of a guard, watch, or duty;
   • That the accused absented himself or herself from his or her guard, watch, or duty section;
   • That absence of the accused was without authority; and
   • That the accused intended to abandon his or her guard, watch, or duty section [If applicable].
5. Absence from unit, organization, or place of duty with intent to avoid maneuvers or field exercises.
   • That the accused absented himself or herself from his or her unit, organization, or place of duty at which he or she was required to be;
   • That the absence of the accused was without authority;
   • That the absence was for a certain period of time;
   • That the accused knew that the absence would occur during a part of a period of maneuvers or field exercises; and
   • That the accused intended to avoid all or part of a period of maneuvers or field exercises.

Defenses

There are two main defenses to Article 86 that can be asserted. The first deals with actual knowledge. In order to be convicted of being AWOL, the accused must have actual knowledge of his appointed time and place of duty. For example, where a member’s unit is ordered to report at 1400 on 1 December 2019, but his documentation says 1400 on 5 December 2019 (and no one tells him any different), he cannot be said to be absent without leave on 2 December 2019. Actual knowledge is vital to an Article 86 prosecution.

Another good defense to Article 86 deals with inability to return. Where a member who is AWOL is dealing with a difficulty that prevents him from returning, such as sickness or lack of transportation, evidence of the difficulty can be used to mitigate the penalties the accused is subject to. Typically, an inability to return defense is an extenuating circumstance rather than a complete defense to prosecution. However, when a member on authorized leave, without fault, is unable to return when leave expires, that person has not committed the offense of being AWOL.

Undiagnosed mental health conditions may also play a role in a servicemember’s decision to go AWOL. Upon return to military custody, it is critical that the servicemember receive immediate and appropriate medical treatment. A mental health diagnosis can be important evidence in extenuation and may later form the basis for a discharge upgrade if the servicemember is separated from the military under general or other than honorable conditions.

Maximum Punishments

The maximum punishment for AWOL increases based on the length of absence and how the absence is terminated, whether through a voluntary surrender or by apprehension. Maximum punishments range from confinement for 1 month and forfeiture of 2/3 pay for 1 month to confinement for 18 months, dishonorable discharge, and forfeiture of all pay and allowances. The severity of punishment will depend on the specification charged and the circumstances surrounding the conduct.

Protect Your Freedom and Your Military Future

When your life, career, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys have decades of combined military justice experience and will zealously fight for you. We have defended servicemen and women facing investigations, trials, and discipline for the most serious offenses under the UCMJ and will ensure that every avenue of defense is aggressively pursued on your behalf. Call us today at (843) 773-5501 for a free consultation.

The post Understanding Article 86, UCMJ – AWOL appeared first on Military Justice Attorneys.

Murder is one of the most serious charges a person–military or civilian–can face. While people often think that murder is limited to only premeditated killings, that’s not always the case in the military. So what are the different types of murder under the Uniform Code of Military Justice (UCMJ)? What are the possible punishments for each? And, most importantly, how do you defend against such a charge? Find out these answers, and more, below.

MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ, including murder. Contact one of our military defense lawyers today to learn more.

Article 118, UCMJ (Murder)

Any person subject to the UCMJ who, without justification or excuse, unlawfully kills a human being is guilty of murder.  There are four ways murder can occur under the UCMJ:

Premeditated Murder

• That a certain named or described person is dead;
• That the death resulted from the act or omission of the accused;
• That the killing was unlawful; and
• That, at the time of the killing, the accused had a premeditated design to kill.

Intent to Kill or Inflict Great Bodily Harm

• That a certain named or described person is dead;
• That the death resulted from the act or omission of the accused;
• That the killing was unlawful; and,
• That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon a person.

Act Inherently Dangerous to Another

• That a certain named or described person is dead;
• That the death resulted from the intentional act of the accused;
• That this act was inherently dangerous to another and showed a wanton disregard for human life; and,
• That the accused knew that death or great bodily harm was a probable consequence of the act; and,
• That the killing was unlawful.

During Certain Offenses

• That a certain named or described person is dead;
• That the death resulted from the act or omission of the accused;
• That the killing was unlawful; and,
• That, at the time of killing, the accused was engaged in the perpetration or attempted perpetration of burglary, rape, rape of a child, sexual assault, sexual assault of a child, aggravated sexual contact, sexual abuse of a child, robbery, or aggravated arson.

Murder Explained

The difference between premeditated murder and unpremeditated murder comes down to intent.  Premeditation means that the thought of taking a life was “consciously conceived and the act or omission by which it was taken was intended.”  This requires that the person form a “specific intent to kill someone” and “consideration of the act intended.”  Premeditation does not necessarily mean that the murder was planned out long in advance—once a “fixed purpose to kill has been deliberately formed, it is immaterial how soon afterwards it is put into execution.”

Defenses

Rule for Court-Martial (R.C.M.) 916 provides defenses to murder.  These include justification (that the death caused was in the proper performance of a legal duty and is justified and not unlawful), obedience to orders, self-defense, accident, and lack of mental responsibility.

Voluntary intoxication (either by drugs or alcohol) is not a defense but may be admitted to raise reasonable doubt about the existence of actual knowledge, specific intent, willfulness, or premeditation. Voluntary intoxication may reduce premeditated murder to unpremeditated murder, but it will not reduce murder to manslaughter or any other lesser offenses.

An experienced military attorney will be able to evaluate your case to determine what defense may apply and what evidence is needed to support that defense. An accused’s abillity to raise a defense may be limited by the facts or law, or may become difficult to raise if the service member provides a statement to law enforcement during the investigation.

Maximum Punishment

The maximum sentence for premeditated murder or murder committed during certain other offenses is death.  Both charges carry a mandatory minimum sentence of imprisonment for life with the eligibility for parole.  The maximum sentence for unpremeditated murder under Article 118(2) or (3) is such punishment other than death as a court-martial may direct.

Pretrial Confinement

Service members suspected of murder are often placed in pretrial confinement pending court-martial. This is a devastating punishment which significantly impacts a service member’s ability to prepare for trial. What’s worse, it prevents them from being with loved ones when it matters most. Service members held in pretrial confinement beyond their end of active service (EAS/ETS) are not entitled to pay and allowances while in confinement.

Any commissioned officer may order any enlisted person into pretrial confinement. Officers may only be ordered into pretrial confinement by their commanding officer. Within 7 days of the imposition of pretrial confinement, a “detached and neutral” officer is required to independently review the confinement decision. The officer may order that the service member be released from pretrial confinement. Later, the military judge assigned to the case may also order their release.

MJA has successfully fought to have service members released from pretrial confinement confinement for some of the most serious UCMJ offenses, including murder. When properly litigated, a service member unlawfully confined may be entitled to significant sentencing credit and even back pay.

Know Your Rights

The decisions you make while under investigation will directly impact your likelihood for success at trial. Here are some key rights you can, and should, invoke:

Right to remain silent. Service members have an absolute right to remain silent if questioned about a suspected UCMJ violation. Providing a statement to law enforcement almost never helps and may result in additional charges. If the statement you make is different from that of the alleged victim, you may be charged with making a false official statement or obstructing justice. “Cooperating” with law enforcement won’t prevent the command from taking adverse action against you–it just makes the government’s case stronger.

Right to refuse consent. There is also no obligation to consent to any search or seizure of your person or property. If investigators have probable cause to believe that there is evidence of a crime in a certain location, they must obtain an authorization from your commander before conducting a search. Absent probable cause, the only way law enforcement can search or seize your property is with your consent. Providing consent gives law enforcement the right to search your phone, vehicle, residence, or person for evidence which they intend to use against you. Don’t be fooled.

Right to counsel. Service members suspected of a crime have the absolute right to consult with an attorney, military or civilian, before waiving their rights. It is crucial to consult with an attorney if you are suspected of a crime. Remember that no matter the specific legal circumstances you are facing, you are entitled to legal counsel and should utilize it.

Protect Your Freedom and Your Military Future

When your career, freedom, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys will zealously fight for you. We have defended service members facing investigation, trial, and discipline for the most serious offenses under the UCMJ, and will ensure that every avenue of defense is aggressively pursued on your behalf.  Contact MJA today on our website or call us at (843) 773-5501 for a free consultation.

The post Understanding Article 118, UCMJ – Murder appeared first on Military Justice Attorneys.