A service member charged with a new offense under Article 86 of the Uniform Code of Military Justice often worries that earlier episodes of unauthorized absence will be paraded before the court. Article 86 covers failing to go to an appointed place of duty, going from an appointed place of duty, and being absent without leave (AWOL). Whether the prosecution can put a prior AWOL incident in front of the fact-finder depends heavily on the phase of trial and the purpose for which the evidence is offered. Prior absences are not freely admissible to suggest the accused is the kind of person who skips out, but they can become relevant under defined evidentiary rules.
Elements the Prosecution Must Prove
To understand when prior incidents matter, it helps to start with what the government must establish. For a failure-to-go offense, the prosecution must prove that a certain authority appointed a certain time and place of duty, that the accused knew of that time and place, and that the accused, without authority, failed to go. The knowledge element is important, and as the Court of Appeals for the Armed Forces explained in United States v. Adams, 63 M.J. 223, actual knowledge may be proved by circumstantial evidence. For an AWOL offense, the inception and termination dates frame the absence, and the duration affects the available punishment.
These elements shape the relevance analysis. Evidence of a prior absence is only admissible if it bears on a fact the government must prove or a fact the defense has placed in dispute.
The Propensity Bar: Military Rule of Evidence 404(b)
The central rule is Military Rule of Evidence 404(b). It prohibits using evidence of other acts to show that the accused has a bad character and therefore acted in conformity with that character on the charged occasion. In plain terms, the prosecution cannot tell the panel, “He went AWOL before, so he probably did it again.” That is exactly the forbidden propensity inference.
The same rule, however, permits other-acts evidence for non-propensity purposes. These recognized purposes include proof of motive, intent, plan, knowledge, absence of mistake, and identity. So a prior AWOL incident may be admissible if it genuinely tends to prove one of these legitimate points rather than mere bad character.
When a Prior Absence Becomes Relevant
Knowledge and intent are the most common gateways. Suppose the accused claims he did not understand that he was required to report, or that his failure to appear was an innocent mistake. A prior incident in which the same accused was counseled, disciplined, or clearly informed about the duty to report can rebut that defense by showing knowledge and the absence of mistake. Because Article 86 turns on the accused knowing the time and place of duty, a defense built on confusion can open the door to evidence that the accused had been through the same situation before and understood the obligation.
Absence of an innocent explanation works similarly. If the defense suggests the absence was authorized or the result of a misunderstanding with the chain of command, the prosecution may respond with prior conduct that undermines the claimed innocent state of mind.
The Balancing Test and Procedural Safeguards
Even when a prior AWOL fits a proper purpose, it must clear additional hurdles. Under Military Rule of Evidence 403, the military judge weighs the probative value of the evidence against the danger of unfair prejudice, confusion, and waste of time. A remote or weakly connected prior absence may be excluded because its tendency to invite the forbidden propensity inference outweighs its limited value.
The judge typically applies a structured analysis: whether the prior act actually occurred, whether it is relevant to a fact of consequence for a non-propensity purpose, and whether its probative value survives the balancing test. If the evidence is admitted, the defense can request a limiting instruction directing the members to consider the prior incident only for the narrow purpose allowed and not as proof of bad character.
Sentencing Is Different
A separate and often more practical avenue arises after a conviction. During the sentencing phase, the rules are broader. Under Rule for Courts-Martial 1001(b)(2), the prosecution may introduce properly maintained personnel records reflecting the accused’s prior service and disciplinary history. A documented prior AWOL, captured in an authorized record such as nonjudicial punishment paperwork, can be presented to inform the panel about the accused’s service record when it decides the sentence. The reliability requirements still apply: the record must be properly created and maintained, and nonjudicial punishment records carry the safeguard that the member must have had the opportunity to consult counsel, consistent with the principles in United States v. Booker, 5 M.J. 238 (C.M.A. 1977).
Practical Takeaways
Prior AWOL incidents cannot be introduced in a new Article 86 trial simply to suggest the accused is prone to disappearing. On the merits, they are admissible only when they serve a legitimate purpose under Military Rule of Evidence 404(b), such as proving knowledge, intent, or absence of mistake, and only after surviving the Rule 403 balancing test. The picture changes at sentencing, where properly maintained records of past absences may come in to inform the panel about the accused’s overall service history. Because these determinations are fact-specific and turn on how the defense frames its case, an accused facing an Article 86 charge should work closely with counsel to identify what doors might be opened and to seek limiting instructions that confine prior-incident evidence to its proper use.
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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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.
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