Unauthorized absence, known as UA in the Navy and Marine Corps and as AWOL in the Army and Air Force, is one of the most common offenses in the military justice system. It arises under Article 86 of the Uniform Code of Military Justice and covers situations where a service member fails to be where they are supposed to be, without authority. Many service members assume that once they have missed a movement, failed to report, or been away from their unit, a charge is inevitable. That is not always true. A military attorney can often help prevent a UA situation from becoming a formal charge, or from becoming a worse charge than the facts warrant. This article explains how.
What Article 86 Actually Requires
Article 86, codified at 10 U.S.C. 886, addresses three related forms of absence: failing to go to an appointed place of duty at the prescribed time, leaving that place of duty, and being absent from one’s unit, organization, or place of duty without authority. The government must prove its case beyond a reasonable doubt, and the elements differ slightly among the three forms. For a failure-to-go or absence charge, the government generally must prove that a competent authority appointed a specific time and place of duty, that the accused knew of that appointed time and place, and that the accused, without authority, failed to be there or remained away.
A critical point is the knowledge element. The accused must have known of the appointed place and time of duty before an absence can be treated as unauthorized in any meaningful sense. Equally important, Article 86 does not require proof that the accused intended to stay away permanently. That intent to remain away permanently is what separates simple unauthorized absence under Article 86 from the far more serious offense of desertion under Article 85. Understanding this distinction is central to preventing a minor absence from being charged as something graver.
How a Charge Can Sometimes Be Prevented
The phrase preventing a charge can mean several different things, and a military attorney can help with each.
First, an attorney can help a service member who is currently absent return to military control in the most favorable way possible. The manner and timing of a return matters. A voluntary surrender is treated very differently from an absence terminated by apprehension, both in how the command is likely to respond and in the maximum punishment that may apply. Counsel can advise on how and where to surrender, what to bring, and what to say and not say, so that the return itself does not make the situation worse.
Second, an attorney can intervene before the command makes a charging decision. Commands often have discretion about whether to treat an absence administratively, through nonjudicial punishment, or by referring charges. By presenting the surrounding facts, an attorney can help the command see the absence in context, which may persuade it to choose a lower-level disposition or to decline to charge at all.
Third, an attorney can help establish that there was authority for the absence or that an element is missing. If the service member actually had leave, liberty, or other permission, or genuinely did not know of the appointed time and place of duty, then a required element fails and there may be no offense to charge. Documenting orders, leave records, communications with the chain of command, and similar evidence can defeat a charge before it is ever preferred.
Addressing the Reasons Behind the Absence
Many unauthorized absences are not acts of defiance. They grow out of family emergencies, medical or mental health crises, financial pressures, transportation failures, confusion about orders, or administrative errors. A military attorney can help surface and document these underlying causes and present them to the command.
This matters in two ways. Some circumstances can negate the offense itself. For example, if the absence was caused by something genuinely beyond the service member’s control, that may bear on whether the failure to report was truly without authority or was the product of impossibility. Other circumstances, while not defenses, are powerful mitigation that can lead a command to handle the matter administratively rather than criminally. An attorney can connect a service member with appropriate medical, mental health, or family-support resources and ensure that documentation of those issues reaches the right decision-makers at the right time.
Choosing the Right Process
When a command is deciding how to proceed, a service member usually has options that a lawyer can explain. Nonjudicial punishment under Article 15, often called captain’s mast in the sea services, can resolve a minor absence without a federal conviction, and a service member generally has the right to refuse it and demand trial by court-martial, except in limited shipboard circumstances. Knowing when to accept nonjudicial punishment and when to demand trial is a strategic decision that depends on the strength of the government’s evidence and the likely consequences, and it is exactly the kind of decision an attorney is equipped to guide.
An attorney can also help a service member avoid converting a short, minor absence into a long one. Because the maximum punishment under Article 86 scales sharply with the length of the absence and whether it ended by apprehension, prompt action with the help of counsel can keep a manageable problem from growing into a much larger one.
Protecting the Service Member During Questioning
When a service member returns from an absence or is confronted about one, investigators and the chain of command will often ask questions. The service member has the right under Article 31 of the UCMJ to remain silent and to consult counsel before answering. Statements made without legal advice can establish the knowledge element, undercut a potential defense, or reveal an intent that turns a UA into a desertion allegation. One of the most valuable things an attorney does is ensure that the service member does not inadvertently supply the evidence needed to charge or aggravate the case.
What an Attorney Cannot Do
It is important to be realistic. A military attorney cannot guarantee that no charge will be brought, cannot fabricate authorization that did not exist, and cannot counsel a service member to continue an unlawful absence. The goal is lawful and ethical: to ensure the facts are accurately understood, to protect the service member’s rights, to present genuine defenses and mitigation, and to steer the matter toward the least damaging lawful outcome. Where an offense did occur, the attorney’s role shifts toward minimizing the consequences rather than preventing a charge outright.
Why Early Involvement Matters
The single most important factor is timing. The earlier a service member involves counsel, ideally before surrendering, before answering questions, and before the command makes a charging decision, the more options remain available. Once statements are made, charges are preferred, or an absence is prolonged, the range of favorable outcomes narrows. Every service member is entitled to free representation by a military defense counsel and may also retain a civilian attorney experienced in military justice.
Conclusion
A military attorney can often help prevent an unauthorized absence from becoming a charge, or from becoming a more serious charge, by guiding a favorable return to military control, intervening before the command decides how to proceed, identifying missing elements and genuine defenses, documenting the real reasons behind the absence, and protecting the service member’s right to remain silent. The law under Article 86 turns on knowledge, authority, and the absence of any intent to remain away permanently, and these are precisely the points where skilled counsel can make a difference. Any service member facing or anticipating a UA issue should contact a military defense attorney as early as possible, because early action preserves the most ways to resolve the matter favorably.
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.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.