Article 86 of the Uniform Code of Military Justice is among the most frequently charged offenses in the military justice system. It addresses unauthorized absence in its many forms, from showing up late to a formation to disappearing from a unit for weeks. The following thirty-five questions and answers explain what the offense covers, how it is proved, how it differs from desertion, and how it is punished. This is general legal education and not legal advice.
1. What is Article 86?
Article 86, codified at 10 U.S.C. section 886, punishes a service member who, without authority, fails to go to or leaves an appointed place of duty or absents himself or herself from a unit, organization, or place of duty. It is commonly called AWOL, absence without leave.
2. Is AWOL the same thing in every branch?
The conduct is the same, but the terminology differs. The Army and Air Force traditionally call it absence without leave, or AWOL, while the Navy and Marine Corps call it unauthorized absence, or UA. The governing statute is the same.
3. What are the forms of unauthorized absence under Article 86?
Article 86 covers several related forms: failing to go to an appointed place of duty at the prescribed time, leaving an appointed place of duty without authority, and absenting oneself from a unit, organization, or place of duty at which one is required to be. Absence from a unit while in a restriction or similar status can also fall within the article.
4. What are the basic elements the government must prove?
In general the government must prove that the accused was required to be at a certain place at a certain time, that the accused was absent or failed to appear without authority, and, where relevant, the duration of the absence and how it ended. The precise elements depend on which form of the offense is charged.
5. Does the length of the absence matter?
Yes. Duration is central to how the offense is punished. A brief failure to report is treated far more leniently than a prolonged absence. Longer absences, particularly those lasting more than thirty days, expose the accused to substantially harsher maximum punishments.
6. What is the difference between AWOL and desertion?
AWOL under Article 86 does not require any intent to remain away permanently or to avoid important duty. Desertion under Article 85 requires that additional intent. A service member who is simply absent without leave, however long, has committed AWOL; desertion requires proof of the heightened intent.
7. How does the prosecution prove I was absent without authority?
Proof of unauthorized absence commonly rests on unit records, morning reports, duty rosters, and the testimony of personnel who can establish that the accused was required to be present and was not, and that no leave or pass authorized the absence. Documentary records are central in most cases.
8. Is intent an element of basic AWOL?
For most forms of Article 86, the government need not prove that the accused intended to be absent in the sense required for desertion. AWOL is generally treated as not requiring a specific intent to remain away. The key is the fact of unauthorized absence rather than a particular state of mind about it.
9. Can I be AWOL if I had a good reason?
A genuine inability to report, such as a medical emergency or circumstances beyond the service member’s control, can negate the offense or provide a defense, because the absence must be without authority and the failure to report must be the accused’s doing. The strength of such a defense depends on the facts and the evidence.
10. What does “appointed place of duty” mean?
An appointed place of duty is a specific location where the service member has been ordered to be at a specific time, such as a formation, a duty station, or a work site. Failing to go there at the prescribed time is the failure-to-go form of the offense.
11. Is being a few minutes late to formation an Article 86 offense?
Technically, failing to be at an appointed place of duty at the prescribed time can fall within Article 86, but minor tardiness is usually handled informally or through minor corrective measures rather than charges. Whether it is pursued formally is a matter of command discretion.
12. How does the absence end, and why does that matter?
An absence can end by the service member voluntarily surrendering or returning, or by apprehension. Termination by apprehension is treated as an aggravating circumstance and generally exposes the accused to a higher maximum punishment than voluntary return.
13. What is surrender for these purposes?
Voluntary surrender means the absent service member presents himself or herself to military authority and makes known the absent status, submitting to control. A voluntary return tends to mitigate the offense compared with being caught.
14. What does apprehension mean?
Apprehension means the absence was ended by the service member being taken into custody by authority rather than returning on his or her own. Because it shows the absence ended involuntarily, it raises the potential punishment.
15. Can I be charged for missing a movement instead?
Failing to be present when a unit deploys or moves can implicate Article 87, missing movement, which is a distinct offense. Whether conduct is charged as AWOL or missing movement depends on the facts, and the two address different concerns.
16. What are the maximum punishments for short absences?
For short absences, the maximum punishment is modest, commonly limited to confinement for about a month and forfeiture of a portion of pay for a similar period for the briefest absences. The exact maximum scales with the length of the absence.
17. What are the maximum punishments for longer absences?
As the absence lengthens, the maximum punishment increases. The most serious form of prolonged unauthorized absence, particularly an extended absence ended by apprehension, can carry a punitive discharge and confinement measured in many months, up to around eighteen months at the high end, together with total forfeitures.
18. Does the punishment depend on the date of the offense?
Yes. The applicable maximum punishments depend on when the offense occurred, because the Military Justice Act of 2016 and later revisions to the Manual for Courts-Martial changed how sentencing is structured. Offenses occurring under the newer framework are evaluated under the revised sentencing rules. The reliable approach is to identify the date of the offense and apply the punishment rules in effect at that time.
19. What is the Military Justice Act of 2016?
The Military Justice Act of 2016 was a major reform of the court-martial system, with provisions phased into effect over following years and reflected in revised editions of the Manual for Courts-Martial. Among other changes, it reshaped sentencing for many offenses, which is why the date of an offense affects the analysis.
20. Can AWOL be handled without a court-martial?
Yes. Many short or minor unauthorized absences are addressed through nonjudicial punishment under Article 15 or administrative action rather than a court-martial. More serious or prolonged absences are more likely to be referred to a court-martial.
21. What is nonjudicial punishment?
Nonjudicial punishment, often called an Article 15 or NJP, allows a commander to impose limited punishment for minor offenses without a trial. It is a common disposition for minor AWOL and carries less severe consequences than a court-martial conviction.
22. Will an AWOL conviction give me a criminal record?
A conviction at a court-martial is a federal conviction and can appear on background checks, while nonjudicial punishment is not a criminal conviction. The consequences therefore depend heavily on how the matter is resolved.
23. Can an AWOL service member lose pay during the absence?
Service members generally do not accrue entitlement to pay for periods of unauthorized absence, separate from any forfeiture imposed as punishment. Time absent without authority is typically treated as time not in a pay status.
24. What is the effect of an AWOL on time in service?
Periods of unauthorized absence may not count as good time toward service obligations and can extend the time a member owes. The administrative consequences accompany any punitive ones.
25. What defenses are available?
Defenses include lack of authority being absent because of a genuine inability to return, mistaken belief that leave or a pass had been granted, authorization that in fact existed, duress, and challenges to the proof that the accused was required to be present. The viability of a defense depends entirely on the facts.
26. Is a mistaken belief that I was on leave a defense?
A genuine and reasonable belief that one’s absence was authorized can negate the unauthorized character of the absence. Whether such a belief was honest and reasonable is a factual question, and documentation supporting the belief helps.
27. What if I was hospitalized and could not report?
If the accused was genuinely unable to report because of hospitalization or similar circumstances beyond his or her control, that can be a defense, because the failure to be present was not a voluntary unauthorized absence. Medical records are important evidence in such cases.
28. Does it matter why I went AWOL?
The reason for an absence generally does not change whether the basic offense occurred, but it can matter greatly to sentencing and to whether any defense applies. Sympathetic reasons may mitigate punishment even when they do not excuse the absence.
29. Can family emergencies justify an absence?
A family emergency may explain conduct and mitigate punishment, and in some circumstances may support a defense, but the proper course is to seek emergency leave through the chain of command. Leaving without authority, even for a genuine family crisis, is still unauthorized absence.
30. How long can someone be AWOL before it becomes desertion?
There is no fixed time that converts AWOL into desertion. Desertion turns on intent, not duration, although a long absence can be evidence from which intent to remain away permanently may be inferred. A short absence with the requisite intent could be desertion, while a long absence without that intent remains AWOL.
31. What happens when an absent member returns?
A returning member is typically taken into military control, the circumstances of the absence and return are documented, and the command decides how to dispose of the matter. Voluntary return is generally viewed more favorably than apprehension.
32. Can charges be dropped if I return voluntarily?
Voluntary return does not automatically erase the offense, but it can lead a command to handle the matter more leniently, sometimes administratively rather than by court-martial. The decision rests with the command and the facts.
33. Does an accused have a right to a lawyer?
Yes. A service member facing court-martial is entitled to free military defense counsel and may also retain a civilian attorney. Even for nonjudicial punishment, a member generally has the right to consult counsel and, in most situations, to demand trial by court-martial instead.
34. How can a service member reduce the consequences of an AWOL?
Returning voluntarily and promptly, cooperating with the command, documenting any legitimate reasons for the absence, and obtaining counsel early all tend to improve the outcome. Each step can affect how the matter is charged and resolved.
35. Where does Article 86 fit among related offenses?
Article 86 is the baseline unauthorized-absence offense. Article 85 addresses desertion, which adds an intent element, and Article 87 addresses missing movement. Together they form the cluster of absence offenses, with Article 86 capturing the broadest range of conduct and the others addressing more specific or more serious situations.
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.
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