UCMJ Article 86: Absence Without Leave

Any failure by a member of the United States Armed Forces to appear before his unit, organization or place of duty at the prescribed time and without authority will be subject to Article 86 of the UCMJ: Absence without Leave.

Despite sounding simple on its face, Article 86 is one of the longest texts within the Manual for Court Martial. Government prosecutors use Article 86 as a catch-all for even the slightest of offenses related to an absence by a service member.

As far as criminal activities go, Article 86 is relatively benign. But expect to incur harsh penalties that could damage or even end your military career:

  • You will be fined two-thirds pay for up to six months depending on the length of your absence
  • A bad-conduct discharge or even a dishonorable discharge may be considered depending on the length of your absence
  • Just missing a training exercise could lead to confinement for a month. Longer absences may incur confinement for up to half a year.

You may not see your absence as a big deal, but the government certainly does. Do you deserve to go to jail because you missed a training exercise? We don’t think so. And neither should you. Contact Bilecki & Tipon and start fighting back today.

What Is Article 86 of the UCMJ?

Article 86 conveys the authority to level punitive charges against any service member that is absent from his or her duties without permission. The article defines five types of absences, each with its own set of elements which must be proven beyond a reasonable doubt by prosecutors to convict you of the crime:

(1) Failure to go to appointed place of duty.

(a) That a certain authority appointed a certain time and place of duty for the accused;

(b) That the accused knew of that time and place; and

(c) 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.

(a) That a certain authority appointed a certain time and place of duty for the accused;

(b) That the accused knew of that time and place; and

(c) 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.

(a) 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;

(b) That the absence was without authority from anyone competent to give him or her leave; and

(c) That the absence was for a certain period of time.

(4) Abandoning watch or guard.

(a) That the accused was a member of a guard, watch, or duty;

(b) That the accused absented himself or herself from his or her guard, watch, or duty section;

(c) That absence of the accused was without authority.

(5) Absence from unit, organization, or place of duty with intent to avoid maneuvers or field exercises.

(a) 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;

(b) That the absence of the accused was without authority;

(c) That the absence was for a certain period of time;

(d ) That the accused knew that the absence would occur during a part of a period of maneuvers or field exercises; and

(e) That the accused intended to avoid all or part of a period of maneuvers or field exercises.

Our take: Military prosecutors must prove you knowingly intended to avoid or depart from your duties, which can be difficult, but not impossible. If you’re being charged under Article 86, chances are the government has evidence which will assist them in the conviction. A proper defense strategy will account for that evidence and prepare to undermine its legitimacy.

Military Defense Attorney for Article 86 of the UCMJ: Strategies and Tactics

The circumstances surrounding your absence will be essential in forming a proper defense. Article 86 considers not just prior knowledge of the absence, but the intent of the service member to avoid his or her duties, and the duration of the absence.

Here are just some of the questions we’ll consider to form your defense strategy:

  • How long was your absence? Did you make an attempt to inform someone about the absence? Was the absence out of your control due to mental or physical health?
  • Is the prosecution overreaching? Can they prove you had knowledge of the engagement? With a proper defense attorney it can be difficult for prosecutors to prove you knowingly avoided your duties.
  • Was your absence over 30 days? Was it terminated by apprehension? Even if prosecutors have a case against you concerning an extended absence without leave, we can still fight those charges and attempt to secure the best possible outcome in your case.

An Article 86 conviction could destroy your military career and damage your civilian future. Call Bilecki & Tipon TODAY and let us handle the details of your defense.

Experienced Military Defense Lawyers for Article 86 Charges

Bilecki & Tipon has proudly served the service men and women of the Armed Forces. We’ve successfully defended others from Article 86 charges and we can do the same for you.

Bilecki & Tipon will help you fight back against charges under Article 86: Absence without Leave

FAQs about UCMJ Article 86

What Is the Maximum Possible Punishment for Article 86: Absence Without Leave?

The massive amount of variation seen in article 86 maximum charges is due to the alleged intent of the service member and the duration of the absence.

  • Failure to go to, or going from, the appointed place of duty: Reduction to E-1, forfeiture of two-thirds pay per month for 1 month, and Confinement for 1 month.
  • Absence from unity, organization, or other place of duty:
    • For not more than 3 days: Reduction to E-1, forfeiture of two-thirds pay per month for 1 month, and confinement for 1 month.
    • For more than 3 days but not more than 30 days: Reduction to E-1, forfeiture of two-thirds pay per month for 6 months, and confinement for 6 months.
    • For more than 30 days: Reduction to E-1, forfeiture of all pay and allowances, confinement for 1 year, and Dishonorable discharge.
  • Absence from guard or watch: Reduction to E-1, forfeiture of two-thirds pay per month for 3 months, and confinement for 3 months.
  • Absence from guard or watch with intent to abandon: Reduction to E-1, forfeiture of all pay and allowances, confinement for 6 months, and a Bad-conduct discharge,
  • With intent to avoid maneuvers or field exercises: Reduction to E-1, forfeiture of all pay and allowances, confinement for 6 months, and a Bad-conduct discharge.

What Is an Aggravated Form of Unauthorized Absence?

Under extreme circumstances, prosecutors may accuse you of demonstrating aggravated forms of unauthorized absence. According to the Manual for Court Martial, this is any absence which is more serious because of aggravating circumstances such as duration of the absence, a special type of duty from which the accused absents himself or herself, and a particular specific intent which accompanies the absence.

What Is the Difference between Absence without Leave and Desertion?

Article 85 governs Desertion, the willful abandonment of a post either permanently or with the intent to avoid duties.

Article 86 governs Absence without Leave, where the service member fails to appear at an appointed place of duty out of negligence or without authority.

Article 86 is a lesser included offense of Article 85 and incurs often incurs less harsh sentencing.

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