Service members and counsel often see charge sheets that list both Article 86 and Article 92 arising out of what looks like a single episode of absence. The question is whether the government may charge them together, or “concurrently,” for the same conduct. The answer is that it can, but with an important qualification: the two articles must address genuinely distinct conduct or distinct legal theories, and the government may not stack them in a way that punishes the same act twice or that piles on charges unreasonably. The analysis turns on the elements of each offense and on the military’s doctrines of multiplicity and unreasonable multiplication of charges.
What each article covers
Article 86, UCMJ, codified at 10 U.S.C. section 886, is the absence-offenses provision. It punishes failing to go to or leaving an appointed place of duty, going from one’s unit or organization without authority, and absenting oneself from one’s unit, organization, or place of duty at which one is required to be. Its gravamen is unauthorized absence.
Article 92, UCMJ, codified at 10 U.S.C. section 892, punishes failure to obey orders or regulations. It reaches violation of a lawful general order or regulation, failure to obey a lawful order issued by a member of the armed forces, and dereliction in the performance of duties. Its gravamen is disobedience or dereliction with respect to a specific order, regulation, or duty.
Because the two articles protect different interests, being where you are required to be versus obeying lawful orders, they can apply to different aspects of a single course of conduct.
When concurrent charging is proper
Concurrent charging is appropriate when the facts genuinely implicate both offenses through separate acts or separate legal theories. Consider a member who receives a specific lawful order to report to a particular formation at a particular time, fails to obey that order, and is also absent from the unit without authority during the same general period. The disobedience of the specific order can support an Article 92 specification, while the broader unauthorized absence can support an Article 86 specification. Each charge is aimed at a distinct wrong, and the proof of one is not simply the proof of the other.
Prosecutors also sometimes charge in the alternative, pleading different theories so that the panel can convict on the theory the evidence supports. This is a recognized practice when the facts are open to more than one plausible characterization, for example distinguishing an unauthorized departure from a failure to return.
The limit: multiplicity
The principal constraint is multiplicity, the doctrine that protects against being punished more than once for the same offense, rooted in double jeopardy. Two charges are multiplicious when one is a lesser included offense of the other, which courts assess using the elements test: whether each offense requires proof of an element the other does not. If proving the Article 92 specification would necessarily prove the Article 86 specification, or the reverse, charging both for the same act is impermissible, and the lesser merges into the greater.
The practical danger arises when the only “order” underlying the Article 92 charge is the general obligation to be present that Article 86 already covers. Charging a member with violating Article 86 for being absent and then charging the same absence again under Article 92 as a failure to obey the order to be present risks treating one act as two offenses. In that situation the Article 92 charge adds nothing but a second label for the same conduct, and it should not stand alongside the Article 86 charge.
The second limit: unreasonable multiplication of charges
Even when two charges survive the strict multiplicity test, military law separately prohibits the unreasonable multiplication of charges. This doctrine reflects a fairness and reasonableness judgment about prosecutorial overreach. The inquiry asks, among other things, whether each charge and specification is aimed at a distinctly separate criminal act, whether the number of charges misrepresents or exaggerates the accused’s criminality, and whether the charging unreasonably increases the punitive exposure. So a charge sheet that technically clears multiplicity can still be an unreasonable multiplication if Article 86 and Article 92 are being used to inflate a single absence into a more serious-looking offense.
How to evaluate a given charge sheet
The questions to ask are straightforward. Do the Article 86 and Article 92 specifications rest on the same act or on different acts? Does the Article 92 charge rely on a specific, distinct order, or merely on the general duty to be present that Article 86 already addresses? Would proving one specification necessarily prove the other under the elements test? If the charges rest on distinct conduct or a genuinely separate order, concurrent charging is permissible. If they collapse into a single act, multiplicity or unreasonable multiplication provides grounds to seek dismissal or merger of the redundant specification.
Bottom line
Article 86 and Article 92 can be charged concurrently, including in the alternative, when the facts support distinct conduct or distinct theories, because the articles protect different interests and have different elements. But the government cannot use them to punish a single act twice. Where one specification is a lesser included offense of the other under the elements test, the charges are multiplicious; and even short of that, charging both can be an unreasonable multiplication of charges. The defense’s task is to test whether the two charges truly reach separate wrongs, and the government’s task is to ensure they do.
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.