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Article 86 Absence without Leave

Under the UCMJ, desertion is different from absence with authorized leave. Article 86 covers those who are absent from their unit or place of duty without permission from or knowledge of the right superior officers. AWOL is considered a lesser offense when compared with Article 86 desertion offenses.

Generally, to prove a service member guilty of AWOL, the military prosecutor must show: that the service member without authority – 1) fails to go to his appointed place of duty at the appointed time, 2) that the service member leaves the appointed place and 3) the service member absents themselves or remains absent from their unit, organization or place of duty where they are required to be at a specific time.

There are several different situations covered under Article 86. Below is a list of ways a prosecutor may choose to charge this particular violation of the UCMJ. All of the charges listed below have the required elements a military prosecutor must prove for each variation of a violation of Article 86 of the UCMJ.

a) Failure to go to designated place of duty or leaving designated place of duty:

The elements to be proven in these kinds of Article 86 cases are:

  • That the accused was required to be at a specific place at a specific time as per orders.
  • That he was well aware of the time and place.
  • That he did not go there or he left from there without proper authorization.

Maximum Punishment- Confinement for 1 month and forfeiture of 2/3 pay for a month.

b) Absence from the designated unit, place of duty or organization:

The elements to be proven in these kinds of Article 86 cases are:

  • The accused went away from or stayed absent from his assigned place of duty.
  • That he did not get proper authorization for this leave of absence.
  • Where applicable, that the absence was terminated by apprehension.

Maximum Punishment: When the accused has been AWOL for up to 3 days, maximum punishment includes forfeiture of 2/3 of a month's pay for one month and 1 month confinement. For absence over 3 days and up to 30 days, forfeiture of 2/3 of a month's pay for 6 months and 6 months confinement. For AWOL over 30 days, maximum punishment involves forfeiture of pay and allowances, dishonorable discharge, and 1 year confinement. If the accused has been AWOL over 30 days and absence has been terminated with apprehension, maximum punishment is forfeiture of pay and allowances, dishonorable discharge, and 18 months confinement.

c) Absence with intent to avoid field exercise or maneuvers

The elements to be proven in these kinds of Article 86 cases are:

  • The accused remained absent or went away from assigned unit or place of duty.
  • He did so without taking proper authorization from someone in a position to give him leave.
  • The accused was fully aware that the absence would take place during specific maneuvers or field exercises in which he would be asked to participate.
  • The accused intended to avoid these maneuvers/ field exercises in part or full by staying AWOL.

Maximum Punishment: Forfeiture of allowances and pay, bad conduct discharge, confinement for 6 months.

d) Absence that amounts to abandoning guard

The elements to be proven in these kinds of Article 86 cases are:

  • The accused was stationed on guard duty at the time.
  • That he went away from his station or remained absent from his station.
  • That he was not authorized to absent himself.
  • That his intent was to abandon the guard duty.

Maximum Punishment: Unauthorized absence draws maximum punishment of forfeiture of 2/3 of a month's pay for 3 months, 3 months confinement. If the accused is proven guilty of absence with intent abandon, maximum punishment is bad conduct discharge, forfeiture of all pay and allowances, 6 months confinement.

To learn more about this punitive article refer to the Manual for Courts Martial.

Example of Article 86 Violation Trial

In the United States v. Mills, 17 C.M.R. 480 (N.C.M.R. 1954), the defense was able to prove that the accused was physically impossible to prevent his unauthorized absence. He was robbed and knocked unconscious when he returned to his ship. As soon as he was able to, he attempted to return to his post. This case is an example of the impossibility due to physical disability in AWOL cases.

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