AWOL & Desertion Defense

Absence without leave and desertion are serious UCMJ violations that can have lifelong consequences if not addressed immediately.

MJA has defended service members charged with desertion and AWOL. If you or a loved one is currently in an authorized absence status from the military, don’t delay in seeking legal help. Contact our military defense lawyers now to learn more.

Article 86, UCMJ (Absence without leave)

Absence without leave (AWOL) occurs when a service member fails to go to his appointed place of duty or simply leaves his unit for a period of time. The following specific conduct may be charged as an unlawful absence under Article 86:

• Failure to go to appointed place of duty;
• Going from appointed place of duty;
• Absence from unit, organization, or place of duty;
• Abandoning watch or guard; and
• Absence from unit, organization, or place of duty with intent to avoid maneuvers or field exercises.

Specific intent is not an element of unauthorized absence. However, certain unauthorized absences are considered more serious because of aggravating circumstances. These circumstances include the length of absence, whether the service member left a special type of duty, and if there was specific intent which accompanied the absence. For example, unauthorized absences for more than 3 days and more than 30 days are considered “aggravated” and increase in punishment.

Article 85, UCMJ (Desertion)

Desertion, in contrast, occurs when a service member remains absent from his unit with the intent to remain away permanently.  The following specific conduct may be charged as desertion under Article 85:

• Desertion with intent to remain away permanently;
• Desertion with intent to avoid hazardous duty or to shirk important service;
• Desertion before notice of acceptance of resignation; and
• Attempted desertion.

The intent to remain away permanently from the unit can be formed at anytime during the unauthorized absence. This intent can be proven by circumstantial evidence.

Maximum Penalties

The maximum punishment for AWOL increases based on the length of absence and how the absence is terminated. For example, the maximum punishment for “failure to go” is confinement for 1 month and forfeiture of two-thirds pay for 1 month.  In contrast, an unauthorized absence for more than 30 days can result in a dishonorable discharge, total forfeitures, and confinement for 1 year.

Desertion terminated by apprehension carries up to 3 years confinement or, in time of war, death. 

Special Considerations

For a service member who has gone AWOL or deserted, returning to the military may seem like a daunting task. While ending an unauthorized absence never gets easier, you don’t have go it alone.

MJA has decades of experience representing service members charged with AWOL and understands that significant extenuating and mitigating circumstances often accompany a long-term unauthorized absence.

Upon returning to military custody, it is critical that service members be provided with immediate physical and mental health treatment and have an advocate in their corner who will fight for them.

Protect Your Future

If you or a loved one are facing charges of AWOL or desertion or are currently in unauthorized absence status and thinking of turning yourself in, call our office today at (843) 773-5501 for a free consultation.