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  • Understanding Article 86, UCMJ – AWOL

    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 (844) 334-5459 for a free consultation.

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