Tag: Military Law Q&A

In an Article 86 AWOL prosecution, the government relies on a specific set of official administrative documents to establish the key elements of the unauthorized absence. The most important piece of evidence is typically the service’s official personnel accountability document. In the Army, this is the unit’s morning report or a printout from the DEERS system. In the Navy and Marine Corps, it is the Unit Diary Marine Integrated Personnel System (UDMIPS) entry. These documents officially record the date and time a member’s status was changed from “present for duty” to “absent without leave.”

To supplement this, the prosecution will introduce the official form that initiated the AWOL report, such as the Army’s DA Form 4187. This form is signed by the commander and documents the circumstances of the absence. They will also present the unit’s leave and pass records to prove that the service member was not in an authorized leave status during the period in question. Testimony from the service member’s commander or first sergeant is also common, where they will state under oath that the member was absent and that they did not have permission to be gone.

A military defense attorney will carefully scrutinize each of these documents for any errors or inconsistencies. They will check to ensure the dates and times are correct and that the forms were signed by the proper authority. Any clerical error in this official documentation can be used to challenge the government’s calculation of the absence duration, which can have a direct impact on the maximum allowable punishment. The case often becomes a battle over the accuracy of these administrative records.…

Communication with the unit during an unauthorized absence does not legally reduce or eliminate the criminal liability for the AWOL itself. The offense of AWOL under Article 86 is complete the moment a service member is absent without authority. The fact that they call their sergeant every day while they are absent does not change the legal fact that they are still absent without permission. The communication does not retroactively authorize the absence.

However, from a practical and strategic standpoint, maintaining communication with the unit is one of the most important things an absent service member can do, and it can have a massive impact on the outcome of their case. A military defense attorney would strongly advise any absent client to maintain contact. This communication serves as powerful evidence that the service member did not have an “intent to remain away permanently,” which is the key element that distinguishes the more serious offense of desertion (Article 85) from AWOL.

Furthermore, communication is a powerful mitigating factor. It shows the command and a court-martial panel that the soldier was not trying to hide and was acting in a more responsible manner. It allows the soldier to explain the circumstances of their absence (such as a family emergency). A soldier who communicates with their unit is much more likely to have their case handled with a more lenient non-judicial punishment rather than a court-martial, and they are much more likely to receive a lighter sentence for the AWOL offense.…

Yes, a service member can be charged under a specific clause of Article 86 for leaving their place of duty before their shift is over. The UCMJ makes a distinction between being absent from the entire unit and being absent from a specific appointed place of duty. The relevant offense is “going from his appointed place of duty” without proper authority. This applies to situations where a soldier is physically present on the military installation but leaves their specific workplace before being properly relieved.

To prove this offense, the prosecution must show that the service member had a specific appointed place of duty (e.g., the motor pool, the communications center), that they knew they were required to be there for a certain period, and that they left that place without getting permission from a superior. This is a common charge for service members who leave work early without authorization. The offense is complete the moment they wrongfully leave their place of duty.

A military defense attorney defending against this charge would focus on the element of authority. They might argue that their client had implied or actual permission to leave from an NCO, or that there was a unit policy or custom that allowed them to leave once their specific tasks for the day were completed. The attorney would also argue that this is a minor offense that should be handled with administrative counseling rather than a criminal charge, especially if it was a first-time occurrence and did not negatively impact the mission.…

A transportation delay can be used as a defense in an Article 86 prosecution, but its success depends on whether the delay was truly unforeseeable and outside the service member’s control. The defense would be based on the principle of “impossibility” or that the absence was not due to the soldier’s own fault or negligence. A soldier is expected to plan their travel responsibly and to allow for common, foreseeable delays.

For example, a defense based on “I got stuck in rush hour traffic” will almost always fail. Heavy traffic is a foreseeable event, and a responsible soldier is expected to leave early enough to account for it. However, a truly unforeseeable and catastrophic travel event could be a valid defense. This might include being stranded due to a sudden, un-forecasted blizzard that shuts down all roads and airports, or a major, multi-car pileup that closes a highway for many hours. The key is that the event must have been completely unforeseeable and unavoidable.

A military defense attorney presenting this defense would need to provide strong, credible evidence to support the claim. This would include official weather reports, news articles about the highway closure, or statements from an airline about a sudden, system-wide mechanical failure. The attorney would argue that their client did everything a responsible person could do but was prevented from returning on time by circumstances that were genuinely beyond their control. This can be a successful defense if the evidence is compelling.…

A voluntary return to military control does not affect a service member’s legal “culpability,” or guilt, for the unauthorized absence itself. The crime of AWOL under Article 86 is completed the moment the service member is absent from their place of duty without authority. The subsequent act of returning to the unit does not erase the fact that an unauthorized absence has already occurred. The soldier is still legally guilty of being AWOL for the duration of their absence.

However, a voluntary return has a massive and critical impact on the sentencing and the overall disposition of the case. The Manual for Courts-Martial explicitly provides for a much lower maximum punishment for an absence that is terminated by a “voluntary return” as opposed to one that is terminated by “apprehension.” This is a formal recognition that a soldier who takes responsibility and turns themselves in should be treated with much more leniency than one who remains at large until they are caught.

A military defense attorney will always advise an absent client that the single most important thing they can do is to return voluntarily. The attorney will then use the voluntary return as their most powerful mitigating evidence during the sentencing phase of a trial or when negotiating with the command. They will argue that the soldier’s decision to return on their own demonstrates their fundamental loyalty and their desire to make amends. This is often the key factor that leads to a much lighter sentence and can even persuade a command to handle the case with NJP instead of a court-martial.…

This depends on the phase of the trial. During the findings phase of the court-martial, when the panel is determining whether the accused is guilty or not guilty of the new AWOL charge, the prosecutor is generally prohibited from introducing evidence of prior, unrelated AWOL incidents. This is because of Military Rule of Evidence 404(b), which forbids the use of “prior bad acts” to prove a person’s character in order to show that they acted in conformity with that character on a particular occasion. In other words, the government cannot argue, “he went AWOL before, so he probably did it this time too.”

This rule is a crucial protection against unfair prejudice. The accused has the right to be tried solely on the evidence of the current charge. A defense attorney would immediately and successfully object to any attempt by the prosecutor to introduce evidence of prior AWOL incidents during the main part of the trial. The judge would be required to exclude this improper propensity evidence.

However, the rules change completely during the sentencing phase. If the accused is convicted of the new AWOL charge, the prosecutor is then permitted to introduce the accused’s entire personnel record, which includes any prior, formal disciplinary actions like an NJP or a court-martial conviction for AWOL. This is used to show the panel that the accused has a pattern of misconduct and that a harsher sentence is needed. The attorney will then have to argue that the prior incidents were minor or old and should be given little weight.…

Yes, multiple, documented short-term unauthorized absences can absolutely be used to support an administrative separation for a “pattern of misconduct.” While a single, short AWOL is typically handled with non-judicial punishment, a series of these incidents, even if each one is minor on its own, can demonstrate a service member’s persistent inability or unwillingness to adhere to the basic military standard of being at their appointed place of duty.

A command seeking to separate a soldier on this basis would need to build a strong documentary record. This would involve a series of formal counseling statements (DA Form 4856) and records of non-judicial punishment (NJP) for each separate AWOL incident. The command would present this packet to a separation board, arguing that despite repeated counseling and disciplinary action, the soldier has failed to correct their behavior. This shows that the soldier is not suitable for continued service due to their unreliability.

A military defense attorney would challenge this by attacking the sufficiency of the “pattern.” They might argue that the incidents were widely spaced apart and separated by long periods of good service, or that there were mitigating circumstances for each absence. However, a clear, well-documented history of four or five or more separate AWOL incidents in a relatively short period is very strong evidence for the government. A separation board is very likely to find that such a history constitutes a pattern of misconduct that warrants an administrative discharge.…

A family emergency does not legally excuse or eliminate the “culpability” (guilt) for an AWOL absence, but it is one of the most powerful and effective mitigating factors that a service member can present. The offense of AWOL is the unauthorized absence itself. Even if the reason for the absence was a compelling family emergency, the absence was still technically “without authority” if the soldier did not get a proper leave extension.

However, the military justice system is not heartless. A commander, a military judge, and a court-martial panel will give enormous weight to a legitimate, verified family emergency. If a soldier went AWOL to be at the bedside of a dying parent or a critically ill child, this provides a powerful human context for their actions. It shows that the soldier was not acting out of a desire to shirk their duties but was responding to a profound personal crisis.

A military defense attorney will make the family emergency the centerpiece of their defense and sentencing case. They will present official documentation, such as a Red Cross message or letters from doctors, to prove the emergency was real. They will argue that while their client should have followed the proper procedure for requesting an extension, their actions were understandable under the extreme emotional stress. This can persuade a commander to handle the case with a minor NJP instead of a court-martial, and it can persuade a panel to adjudge a very lenient sentence with no confinement and no punitive discharge.…

A military judge will provide the court-martial panel with a specific, detailed instruction on how to calculate the duration of an unauthorized absence. This is a critical instruction because the maximum punishment for an AWOL offense is directly tied to its length. The judge will explain that the period of absence begins at the moment the service member is first in an unauthorized absence status—for example, the moment their leave expires or the time of a missed formation.

The judge will then instruct the panel that the absence ends when the service member returns to military control. They will explain the two ways this can happen. The first is “voluntary return,” which occurs when the soldier, on their own initiative, presents themselves to a military authority (such as their unit, a military police station, or a recruiter) with the intent to return to duty. The second is “apprehension,” which occurs when the soldier is taken into custody by military or civilian law enforcement who are acting on behalf of the military.

The judge will instruct the panel that they must, if they find the accused guilty, make a specific finding of fact on the exact start date and end date of the absence. They must also make a specific finding on whether the absence was terminated by voluntary return or by apprehension. This is because the Manual for Courts-Martial lists different, specific maximum punishments for each of these scenarios. This detailed instruction ensures the panel properly calculates the duration, which is essential for a lawful sentencing proceeding.…

Yes, a service member can be administratively separated for a series of multiple, minor AWOL offenses. The legal basis for this separation is typically a “pattern of misconduct.” While a single minor AWOL, such as being a few hours late, would almost never be grounds for separation, a recurring pattern of such absences demonstrates a soldier’s unreliability and their failure to meet the basic standards of military discipline.

To initiate this separation, the command must build a comprehensive documentary record. This record would need to include the formal counseling statements (DA Form 4856) and the records of non-judicial punishment (NJP) for each of the prior, separate AWOL incidents. The command would then present this entire packet to a separation board. The command’s argument would be that despite repeated counseling and lesser forms of discipline, the soldier has shown that they are unwilling or unable to be where they are supposed to be, making them unsuitable for continued service.

A military defense attorney defending against this would have to show that the “pattern” is not as clear as the command alleges. They might argue that the incidents were widely spaced apart, that there were legitimate mitigating circumstances for each one, or that the soldier has shown recent, dramatic improvement. However, a well-documented history of five or six or more separate AWOL incidents, even minor ones, is very strong evidence for the government, and a separation board is very likely to find that it constitutes a pattern of misconduct that warrants an administrative discharge.…