Article 86 Absence Without Leave

When you enlist in the United States military, the Uniform Code of Military Justice, or UCMJ, becomes your guiding principle. It is a serious and comprehensive set of laws that clearly defines the expected behaviors of service members and outlines all conduct considered unbecoming. The UCMJ serves as the moral code of laws and procedures for every military branch, providing commanding officers with the means to punish those who violate the code. The UCMJ encompasses violent and non-violent criminal offenses and laws specific to the military, such as the serious offense of going AWOL, covered under Article 86.

If a service member has gone “AWOL,” they are absent without official leave. Cases of AWOL come up when someone fails to appear before their unit, organization, or place of duty at a predetermined time under military orders. Article 86 of the UCMJ covers AWOL procedures.

Types of AWOL in Article 86

Let’s answer your first question, “What is Article 86 of the UMCJ?” It refers to the act of a servicemember who, through their own fault, is not where they’re supposed to be. Under Article 86, there are two main categories and various subcategories that an AWOL charge may be classified as. Examples of a UCMJ Article 86 failure to report include:

• Failure to go to appointed place of duty.
  • A commanding officer ordered the accused somewhere at a certain time and place.
  • Said accused individual was aware of that time and place.
  • The accused went against orders and did not show up at the designated place of duty when they should have.

• Going from appointed place of duty.
  • A military authority told the accused to be on duty at a certain time and place.
  • The accused individual knew where they should be and when.
  • They then left their assignment after having reported.

AWOL vs. Desertion

Despite common misconceptions, there is a difference between “going AWOL” and desertion. Desertion is a far more serious charge than AWOL. While AWOL refers to a temporary abandonment of post, desertion means the accused servicemember intended to leave behind their military duties permanently. Under Article 85 of the UCMJ, there are four types of desertion charges:

• Desertion with intent to remain away permanently
• Desertion with intent to avoid hazardous duty
• Desertion before notice of acceptance of resignation
• Attempted desertion

Desertion with intent to remain away permanently means that the accused purposefully left their organization or post without the proper approval with the intention of not returning.

Desertion with intent to avoid hazardous duty means that the accused individual quit their unit or assignment to avoid duty because their job was dangerous, and they did not want to be required to perform it.

Desertion before notice of acceptance of resignation means that the accused service member was a commissioned member of the Armed Forces who gave their resignation but left their post with the intention of not returning before receiving acceptance of their resignation.

Finally, attempted desertion means that the accused either was preparing to desert, acted with the specific intent to desert, or “tended to effect the commission of “the offense of desertion.”

To understand more about the differences between AWOL and desertion, review this Article 86 UCMJ pdf.

Reasons for AWOL

People naturally feel concerned whenever a service member goes AWOL. That’s because soldiers are proud, dedicated, and determined individuals. It takes a lot for them to walk away from people. It must be serious if something has pushed them that’s or not to arrive at their post without proper permission. In many cases, it is. Common reasons military members may go AWOL include:

• Family problems or obligations (i.e., sick relatives, divorce, death, etc.)
• Financial difficulties (unmanageable debt, lack of financial support, etc.)
• Illness (includes physical and mental health and substance abuse)
• Burnout (exhaustion, inability to focus, etc.)
• Transportation issues (i.e., public transportation service disruptions, accidents, etc.)
• Protest (poor leadership, unjust reprimands, immoral missions, etc.)

Sometimes, a soldier may be labeled as AWOL when they’re not. In this scenario, they were granted verbal orders from the commander (VOCO) to leave, but the actual paperwork was left unsigned. If this situation resembles yours, you should not be charged with going AWOL or desertion over a simple miscommunication. You can ensure you have the necessary legal support by contacting Daniel Conway & Associates to provide the best defense possible.

Prosecuting Under Article 86

To be prosecuted and convicted of going AWOL under UCMJ Article 86, the government must be able to prove that you knowingly were not at your place of duty when you should’ve been. They only have to do so using circumstantial evidence. Generally, they do not have to prove specific intent unless your unauthorized leave is considered aggravated. If this is the case, there must be specific intent that can be proven beyond a reasonable doubt. AWOLs that are considered aggravated absences include:

• Those lasting more than three days
• Those lasting for more than 30 days
• An absence from a guard, watch, or duty
• An absence from guard, watch, or duty section with intent to abandon it
• An absence intending to avoid maneuvers or field exercises

Being Charged with an Article 86 Violation

To be charged with a violation, the prosecution must be able to prove the accused went from or remained absent from their unit, organization, or place of duty without the proper permission despite knowing their presence was required. It should be implied that a return to military custody was involuntary.

Article 86 also outlines specific provisions regarding the apprehension of service members absent without leave by civilian law enforcement. It details how to calculate the length of their unauthorized absence. As described in this UCMJ Article 86 pdf, when civilian authorities detain a service member at the military’s request, their absence concludes upon detention. The Article specifies that if a service member is on authorized leave and, through no fault of their own, cannot reach the military’s end of the leave, they are not considered AWOL.

Consequences of AWOL

A UCMJ Article 86 failure to report charge can cost service members time, money, freedom, and careers. The consequences of an Armed Forces member going AWOL vary based on the length of time, whether or not it’s considered aggravated AWOL, and more. Punishments for violating Article 86 start at one month of confinement and a pay cut of two-thirds if a soldier has been gone for more than three days. If gone for more than 30 days, they could face a dishonorable or “bad-conduct” discharge, total pay forfeitures, and confinement for six months and up to one year.

Specific Article 86 UCMJ punishments include:

• Absences of up to three days with a reduction of ⅔ “ay per month, one “month of confinement, and a reduction to E-1.
• Absences of 3–30 days with a reduction of ⅔ pay per month for six months, six months of confinement, and a reduction to E-1.
• An absence of over 30 days with a dishonorable discharge, no pay or allowances, confinement of one year, and a reduction to E-1.
• An absence of over 30 days has led to termination by apprehension, a dishonorable discharge, loss of all pay and allowances, 18 months of confinement, and a reduction to E-1.

The Importance of a Military Defense Attorney

AWOL accusations are serious and can potentially end your military career quickly. That’s why It is crucial to secure the assistance of an attorney who is well-versed in the UCMJ if you face punishment for a UCMJ Article 86 violation. Contact Daniel Conway & Associates to meet with one of our military defense attorneys. We need to know every detail to give your case the best chance of dismissal. The more you disclose, the stronger your defense will be.

No Matter the Branch, No Matter the Base, We Build the Case.

Handling an Article 86 UCMJ case requires a lawyer skilled in military law. For over 50 years, Daniel Conway & Associates has championed service members’ rights and offered invaluable guidance in court. We understand the rigid protocols of military procedures and the urgency involved with an accusation of having broken one. Your Daniel Conway attorney will work closely with you to clarify the process and help prepare your testimony. They will diligently review the case to pinpoint potential weaknesses, highlight its strengths, and counsel you on the most impactful way to present your situation.

Daniel Conway & Associates is dedicated to providing dependable, assertive, and just representation. We will partner with you to alleviate the challenges associated with an adultery accusation. Your attorney will construct your defense, showcase strong evidence, and support you through the legal proceedings to help you avert potentially career-threatening outcomes. To safeguard your career and reputation, seek legal support. Contact Daniel Conway & Associates online or call (888) 401-6214 today to arrange a consultation with our Article 86 UCMJ attorneys!