Ei Incumbit Probation Qui Dicit.

Proof lies on him who asserts, not on him who denies. The concept is that one is innocent until proven guilty. Regardless of what the law says about reasonable doubt, there is an unwritten presumption within the ranks of the military that if you are charged with sexual assault, then you are guilty. The stakes are your life! Your military counsel works for the same military that charged you. Consider that as you choose who represents you in your potentially life altering case.

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Is Going AWOL Ever the Right Option?

By Tasha Carnahan and Joseph Jordan

Here is an example. This is a hypothetical situation and is in no way an actual case.

SGT John Brown's uncle passed away. He brought this to the attention of his command; however, they had just returned from block leave and he didn't have any remaining leave days. The commander wouldn't authorize emergency leave because he didn't want SGT Brown to go into the negative on his leave days. SGT Brown then decided to take matters into his own hands. He attended the funeral without authorized leave and was notified by his unit that he was Absent Without Leave, Violation of Article 84 of the Uniform Code of Military Justice (AWOL). SGT Brown knew that if he returned he would be in some sort of trouble, but didn't want to face the consequences just yet because of the tragic event he just experienced by losing his uncle.

Days turned into weeks, weeks turned into a year. SGT Brown needed to renew his driver's license. As he was in the process of doing this, he was arrested and returned back to military authority. The life he was living was abruptly stopped and his "new" life was turned upside down. Once he returned he was notified that his new chain of command is going to court-martial him for being AWOL for the past year. At a Special Court-Martial SGT Brown received the following punishment: reduction to E1; forfeiture of two-thirds pay; confinement for one year; and a bad-conduct discharge.

I would like to clarify that the above example is just that, an example; however, based on our experience this is how many AWOL cases go.

First, if SGT Brown hadn't left his unit with out proper leave, he would not have received punishment for being AWOL. If SGT Brown would have returned as soon as the funeral was over, he could have potentially received a much less sever punishment. Going AWOL just creates new problems. The amount of time you are AWOL generally dictates the type of punishment you will receive.

Here are some ranges of punishment that the chain of command could consider under the hypothetical circumstances:

  • If you are gone seven days or less, and this is a first offense for you, you can expect a company grade Article 15. With a company grade Article 15 you are subject to the following punishment: E1 to E4 reduction of one grade; seven days forfeiture of pay for one month; 14 days extra duty; 14 days restriction; and/or a verbal/oral reprimand.
  • If you are gone seven to twenty days you can generally expect a field grade Article 15. A field grade Article 15 can administer the following punishment: E1 to E4 reduction of more than one grade E5 to E6 reduction of one grade; ½ a month's pay for two months; 45 days extra duty; 45 days restriction; and/or a verbal/oral reprimand.
  • Twenty days or greater you can expect a court-martial. The level of court-martial is subject to your chain of command. By no means is this exclusive, this is solely based on our experience with the military justice system.

These estimates are not absolutes. In fact any range of punishments is authorized. In the first hypothetical it could be a summary courts martial or a special courts martial. It is really and truly at the discretion of the chain of command as to how they wish to dispose of this violation of the UCMJ.

So, is going AWOL the right option or even an option under the hypothetical listed or similar circumstances? The absolute answer that you will receive from us, or any attorney, will be no. Do not go AWOL. The best thing for you to do in any situation is to follow your chain of command's orders. There are other avenues of approach to achieve your goals. You can file an IG complaint or make and Article 138 claim against your chain of command regarding the hypothetical listed above. Look for more blogs on what an IG complaint or Article 138 claim is in the future.

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