Article 86 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. 886, punishes absence without leave, commonly called AWOL or unauthorized absence. A natural question arises when a service member takes steps toward leaving without authority but is intercepted before actually getting away: can the government charge an attempt? The answer depends on the law of attempts under Article 80, the line between preparation and a true attempt, and the unusual nature of absence offenses. This article explains how those pieces fit together.
The Underlying Offense Under Article 86
Article 86 covers several forms of unauthorized absence, including failing to go to an appointed place of duty, leaving that place, and being absent from one’s unit, organization, or place of duty without authority. The core of the offense is the unauthorized absence itself. Importantly, AWOL is generally treated as an offense of status or condition rather than a single instantaneous act. A person is AWOL during the entire period they remain absent without authority. This characterization matters because the law of attempts was developed primarily for offenses that consist of a discrete act the accused tries but fails to complete.
The Law of Attempts Under Article 80
Article 80, codified at 10 U.S.C. 880, makes it an offense to attempt to commit any other offense punishable under the code. An attempt has well-defined elements: the accused must have the specific intent to commit a particular offense, and must commit an overt act that amounts to more than mere preparation and that tends, even if it fails, to effect the commission of the intended offense. Two ideas are central. First, the accused must specifically intend to commit the target offense. Second, the conduct must cross the line from preparation into a direct movement toward completion. General intent, recklessness, or early-stage planning is not enough.
Preparation Versus a Substantial Step
The decisive concept for the question posed is the distinction between preparation and an act that goes beyond it. Preparation consists of arranging the means or measures necessary for the offense, such as packing a bag, buying a bus ticket, or telling a friend of an intention to leave. An attempt requires conduct that constitutes a direct movement toward commission after preparations are complete, the kind of act that would result in the offense but for an intervening cause such as being stopped. Courts evaluate how far the conduct progressed and whether it amounted to a substantial step that strongly corroborates the criminal intent.
Applying this to a member who prepares to leave but is stopped, the result turns on the facts. If the member has only gathered belongings, made plans, or expressed an intent to go, that is preparation, and an attempt charge would not lie. If the member has done something that constitutes a direct movement toward becoming absent, such as actually departing the installation or the appointed place of duty without authority and being apprehended in the act of leaving, the conduct may have crossed into an attempt or, in some configurations, may already satisfy a completed Article 86 offense.
Why the Status Nature of AWOL Complicates an Attempt Charge
There is a conceptual wrinkle. Because some forms of unauthorized absence are completed the moment the member is where they should not be, or is not where they should be, the window for a true attempt can be narrow. For the failure-to-go variant, for example, the offense is essentially complete when the appointed time passes and the member has not reported, which leaves little room for an attempt distinct from the completed offense. For absence from the unit, a member who has actually slipped away has likely completed the offense rather than merely attempted it. The practical space for an attempt charge tends to exist in the moments when a member has moved beyond preparation toward unauthorized departure but has not yet achieved the absence that completes Article 86.
Charging Considerations for the Government
Given these complications, prosecutors weigh several options when a member is stopped while trying to leave. They may charge the completed Article 86 offense if the facts show the member was, even briefly, absent or away from the appointed place without authority. They may charge an Article 80 attempt if the conduct went beyond preparation but the absence was never achieved. They may also consider other articles, such as a failure to obey an order to remain, or dereliction, if those better fit the proof. The choice depends on exactly what the member did and when the interception occurred. Article 80 attempts are recognized in connection with absence offenses, but the government must still prove specific intent and an act beyond preparation.
Defenses and Practical Points
For the defense, the strongest arguments usually focus on the preparation line and on intent. If the member’s conduct never advanced past arranging the means to leave, the defense can argue there was no overt act sufficient for an attempt. If the member was ambivalent, intended only a temporary or authorized absence, or abandoned the plan, the specific-intent element may be contested. Voluntary abandonment before the act crosses into an attempt can also defeat the charge in appropriate cases. Because the analysis is so fact dependent, the precise sequence of events, the member’s statements, and the point of interception are all critical.
Key Takeaways
An attempted violation of Article 86 can be chargeable under Article 80 when a member moves beyond mere preparation toward unauthorized absence with the specific intent to be absent, but is stopped before the absence is achieved. The key dividing line is preparation versus a direct movement toward commission. Merely packing, planning, or announcing an intention to leave is preparation and will not support an attempt. The status nature of AWOL narrows the practical space for attempt charges, because many forms of unauthorized absence are complete the instant the member is absent, leaving the government to choose between a completed-offense charge and an attempt based on the exact facts. Anyone facing such a charge should have the timeline and intent evidence scrutinized closely, since those details determine whether the conduct amounts to an attempt at all.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
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