UCMJ Article 86
Absence Without Leave
Absence Without Leave (AWOL) in the military is addressed under Article 86 of the UCMJ. The scope of Article 86 covers any case not addressed in another Article in which a service member is, through the service member’s own fault, not at the place where the member is required to be at a prescribed time. An offense under this Article is different from Desertion (Article 85) or Missing Movement (Article 87). Under Article 86, the service member need not be absent from military jurisdiction and control to be charged under this Article. For example, a service member may be charged under this Article if they choose to remain in their quarters without permission on a military post when their assigned unit is in the field conducting training on that same post. To convict a service member under this Article, the Government must prove, only through circumstantial evidence, that the service member had actual knowledge of their appointed time and place of duty.
It is important to understand that there is a broad spectrum of punishments under this Article based on whether the offense is considered to be aggravated. Specific intent on the part of the service member is not an element the Government must prove. However, if the unauthorized absence is considered aggravated, specific intent may be a required element the Government will need to prove beyond a reasonable doubt. Aggravated unauthorized absences are listed below:
- Unauthorized absence for more than 3 days duration.
- Unauthorized absence for more than 30 days duration.
- Unauthorized absence from a guard, watch, or duty (special type of duty).
- Unauthorized absence from guard, watch, or duty section with intent to abandon it (special type of duty and specific intent).
- Unauthorized absence with the intent to avoid maneuvers or field exercises (special type of duty and specific intent).
Maximum Possible Punishments for violations of Article 86
For aggravated offenses under this Article from the above list, the maximum punishment starts at confinement for one month and forfeiture of two-thirds pay for one month for being absent for not more than 3 days. More extreme punishments include a Bad-Conduct Discharge, forfeiture of all pay and allowances, and confinement for 6 months for being absent with the intent to avoid maneuvers or field exercises.
Understanding Article 86 (Absence Without Leave) of the UCMJ
The crime of being absent without leave under the UCMJ consists of three elements. All three of these elements, and in some cases their sub-elements, must be proven by the Government beyond a reasonable doubt in order to charge a service member under this Article and include:
- That the accused failed, without authority, to go to his appointed place of duty at the time prescribed;
- Goes from that place; or
- Absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed.
Article 86 also sets forth special rules regarding civilian law enforcement apprehension of a service member who is absent without leave as well as computing the duration of the unauthorized absence. For example, when a service member is taken into custody by civilian law enforcement at the request of the military, the service member’s absence is terminated the moment they are detained by that civilian authority. The Article also makes clear that, when a service member is on authorized leave, and through no fault of their own, cannot return to duty at its expiration, that service member has not committed an offense under this Article.
How do you defend against Article 86 charges for Absence Without Leave?When you are facing the combined resources of the military as well as the current cultural climate, you need to be prepared to defend your career and your freedom. Crisp and Associates, LLC has a team of experienced trial attorneys who have won these cases. This team includes the firm’s founder, Jonathan Crisp, a highly respected former Army JAG with over 21 years of experience in military law and a sought-after speaker and lecturer on military law. Donald Gordon has litigated cases before the Discharge Review Board, the Board for Correction of Military Records, and the Board for Correction of Naval Records regarding a wide variety of matters and a diverse background of clients
If you or someone you know is facing Article 86 charges for Absence Without Leave, you need to speak with a Military defense attorney right away. Please call Crisp and Associates Military at 888-258-1653 for a free consultation.
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