UCMJ Article 86: Absence Without Leave (AWOL)
At Bilecki Law Group, we defend service members around the world from charges under Article 86, including Absence Without Leave and Unauthorized Absence.
What Is Article 86 Of The UCMJ?
Absence without leave occurs under Article 86 of the UCMJ when a service member fails to appear before his/her unit, organization, or place of duty at a prescribed time as ordered by the proper authority. In the Army and Air Force, this misconduct is referred to as absence without leave (AWOL), while in the Navy and Marine Corps it is referred to as unauthorized absence (UA).
AWOL is one of the more common charges in the military and the term AWOL is even used in the civilian lexicon to describe when someone or something has gone missing. The term’s frequent use during military movies or television means the average person is likely aware of the general meaning.
Yet, the average civilian has never heard it referred to as Article 86 and nor are they aware it can cost service members time, money, freedom, and perhaps their career. It is a relatively benign charge as far as criminal activity goes, but it is often thrown in with more serious charges that took place while AWOL or UA.
What Types of Absences Qualify For Charges Under Article 86?
There are actually four subsets of charges under Article 86, which cover the types of absences that will lead to charges. This is important for your defense in that we will fight to ensure your actual absence warrants a charge. That’s because if you are facing this charge under Article 86 of the UCMJ, there likely was an actual absence. It’s not often you are charged while standing in formation and they just missed you. There is more to the story of your absence that must be considered. For the absence to be charged, you’ll need to meet one of the elements below.
Failing to go to or going from place of duty
To be charged, there are three elements that must be satisfied. The first, that a proper authority assigned you to be present at a place of duty at a certain time. Next, that you knew you were required to be present. Finally, that without proper authority you (failed to go to the appointed place of duty at the time prescribed) or (went from the appointed place of duty after having reported at such place). Maximum punishment: ⅔ pay/month x 1 month, 1-month confinement, reduction to E-1.
Absence from unit, organization, or place of duty
To be charged, there are three elements that must be satisfied. That the accused went from or remained absent from his/her (unit) (organization) (place of duty). That the absence was without authority from someone who could give the accused leave and that the accused remained absent until a specific date. It also defines apprehension to communicate that the accused’s return to military control was involuntary. This would bring a specific charge of AWOL terminated by apprehension.
Maximum punishment: Absences up to 3 days, ⅔ pay/month, 1-month confinement, reduction to E-1. Absences 3 to 30 days, ⅔ pay/month x 6 months, 6 months confinement, reduction to E-1. Over 30 days, dishonorable discharge, forfeiture of all pay and allowances, confinement for 1 year, and reduction to E-1. Over 30 days and terminated by apprehension, dishonorable discharge, forfeiture of all pay and allowances, 18 months confinement, reduction to E-1.
Absence from unit, organization, or place of duty with intent to avoid maneuvers or field exercises.
To be charged, there are five elements that must be satisfied. That the accused went from or remained absent from his/her (unit) (organization) (place of duty) where they were required to be and that this absence was without authority. Next, the accused remained absent until a certain date. One must then demonstrate that the accused knew the absence would occur during a period of (maneuvers) (field exercises) that he/she was required to participate in and finally, that the accused intended the absence for the purpose of avoiding (all) (part) of the (maneuvers) (field exercises).
Maximum punishment: bad-conduct discharge, forfeiture of all pay and allowances, 6 months confinement, reduction to E-1.
Abandoning watch or guard.
To be charged, there are three elements that must be satisfied. That the accused was a member of the (guard) (watch) (duty section). Next, that the accused went from or remained absent from his/her (guard) (watch) (duty section) and that the absence was without authority. Article 86 then defines “intended to abandon” as that the accused, at the time the absence began or at some time during the absence, must have intended to completely separate themselves from all further responsibility for a particular duty as a member of the (guard) (watch) (duty section). That would bring the specific charge of abandoning watch or guard with intent to abandon. Maximum punishment: ⅔ pay/month x 3 months, 3 months confinement, reduction to E-1. If with intent to abandon, bad-conduct discharge, forfeiture of all pay and allowances, 6 months confinement, reduction to E-1.
Why The Full Story Of An Authorized Absence Must Be Told
As we mentioned earlier, if you are facing charges or are under investigation, there likely was some form of the absence involved. No two incidents of AWOL or UA are alike. There is a specific reason you were not present and that reason matters. For a historical example, we need not to look any further than a young Marine named Jack Lucas. Now when we say young, we mean it. Jack Lucas was only 14 years old when he joined the Marine Corps in 1942. The young man wanted to fight and he wasn’t going to let something as silly as age stop him.
He was sent to Hawaii in 1943, but when a military censor reading a letter to his girlfriend discovered his real age, the ruse was over. The Marines were planning to send him home, but he said he would just join the Army if they did. The Marines decided to keep him and young Lucas spent the next year raising hell and fighting other grown Marines. On January 10th of 1945, Lucas made his move. He conducted an unauthorized absence and jumped on a ship heading into combat.
Lucas remained a stow away for nearly 30 days and then turned himself in on February 8th, 1944. He had just turned 17 and since the Marines on board were heading for the fight at Iwo Jima, the commander decided if he wanted to fight that bad, they could use Marines like him. On Iwo Jima, Lucas would unleash his version of hell upon the Japanese and subsequently jump on, not one, but two grenades and survived. For his actions that day, he was awarded the Medal of Honor and perhaps the title of baddest teenager in the land.
How To Fight and Win Against Charges of AWOL Or UA Under Article 86
Look, we realize that not everyone picks up the nation’s highest military honor as a result of unauthorized absence. Though, the Medal of Honor will forgive a multitude of wrongs. However, there is still a story and purpose behind your absence. It may be a silly story and one you regret, but there is a story nonetheless. In addition, we are still going to make the prosecution prove every single element of the charge and we’ll be there to challenge them at every step of the way. They get no easy wins when Bilecki is in the fight.
We’re going to evaluate how long your absence was and whether or not you made valid attempts to inform someone about the absence. Was the absence manifested as the result of a physical or mental health struggle? Can they really prove you had knowledge of the engagement or exercise? First Sergeant sending some group text may not cut it. It may even be that you acknowledge your error and you are just trying to save your career so that it doesn’t end with one stupid decision. We can fight to secure you the best possible outcome.
AWOL and UA charges under Article 86 might seem common, but make no mistake about it, this can destroy your career and follow you into civilian life. The military justice system exists to preserve military order and it won’t achieve that order if it lets service members off easy. They need to throw the book at someone and if you don’t put up a fight, the military justice system will roll over you just to make an example out of you. Make yourself a harder target than the next guy and let them make that example out of someone else. Reach out to us at Bilecki, and get us into the fight. That is, unless you plan to pick up the Medal of Honor in your absence.
Frequently Asked Questions
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 that 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.
This will only lead to harsher sentencing and more aggressive tactics by prosecutors. This is why it’s more important than ever that you have court martial lawyers with a proven record for winning drug cases in the military.
- 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