Here is a hypothetical situation. It is not 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 did not have any remaining leave days. The commander would not authorize emergency leave because he did not want SGT Brown to go into the negative on his leave balance. 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, a violation of Article 86 of the Uniform Code of Military Justice. SGT Brown knew that if he returned he would face consequences, but he did not want to face them yet because of what he had just been through.
Days turned into weeks, weeks turned into a year. SGT Brown needed to renew his driver’s license. During that process he was arrested and returned to military authority. At a special court martial, SGT Brown received the following punishment: reduction to E-1; forfeiture of two thirds pay; confinement for one year; and a bad conduct discharge.
The above is an example. Based on our experience, this is how many AWOL cases unfold.
The Governing Articles
The difference between these two articles is intent, and intent is almost never proved by anything the absent service member said. Mr. Jordan prosecuted absence cases from the government side at Fort Hood, Texas, and with the 2nd Infantry Division in South Korea. Evidence of an intent to remain away permanently is drawn from conduct rather than from words: a lease signed, a vehicle registered off post, a civilian job started. Someone who leaves intending to come back and then does not manage it looks very different in that record from someone who was building a life elsewhere.
Three articles of the UCMJ address failures to be where you are ordered to be:
- Article 86, Absence without leave. Covers failing to go to an appointed place of duty, leaving that place, or being absent from a unit, organization, or place of duty without authority.
- Article 85, Desertion. Requires an intent to remain away permanently, to shirk important service, or to avoid hazardous duty. A prolonged absence can support an inference of that intent, but the inference can be rebutted.
- Article 87, Missing movement. Covers failing to move with a ship, aircraft, or unit when required.
The distinction matters. AWOL and desertion are separate offenses with different elements and very different maximum punishments.
What Usually Happens, and Why the Range Is Wide
The range is wide because almost all of it is discretion, and discretion responds to circumstances a service member can still affect. That experience gave Mr. Jordan direct exposure to how commanders and legal offices weigh the length of the absence, the manner of the return, the evidence of intent, and any surrounding misconduct when deciding how an absence case proceeds.
If SGT Brown had returned as soon as the funeral was over, the likely outcome would have been far less severe. Going AWOL creates new problems on top of the original one. The length of the absence is one of the factors that shapes the response.
Ranges a chain of command may consider under circumstances like the hypothetical:
- Absent seven days or less, first offense. Often handled at company grade Article 15 level. In the Army, available punishments at that level include reduction of one grade for E-1 through E-4, forfeiture of seven days’ pay for one month, 14 days extra duty, 14 days restriction, and an oral or written reprimand. The other services set their own figures.
- Absent roughly seven to twenty days. Often handled at field grade Article 15 level, where the available punishments increase.
- Longer absences. More likely to be referred to a court martial, with the level depending on the command.
These are not fixed rules. Disposition is at the discretion of the chain of command, and the same absence can be handled differently in different units. The maximum punishment for a given offense is set by the Manual for Courts-Martial; what a command actually seeks is a separate question.
What to Do Instead
Each of these steps is easier with counsel who has seen that assessment made from the government side. Joseph L. Jordan, Attorney at Law defends unauthorized absence and desertion allegations in all six branches. That decision is discretionary, it is made early, and how the return is handled affects it.
The answer you will get from us, or from any defense attorney, is the same: do not go AWOL.
If your leave request is denied and you believe the denial is wrong, there are channels. You can file an Inspector General complaint. You can submit a complaint under Article 138 of the UCMJ, but the statute sets a sequence and skipping it will get the complaint returned. You first apply to the commanding officer for redress. Only if that officer refuses may you complain to a superior commissioned officer, who then forwards the complaint to the officer exercising general court martial jurisdiction over the officer complained against. The American Red Cross can also verify a family emergency and communicate it to a command, which sometimes changes the outcome of an emergency leave request.
None of these is guaranteed to work. All of them are better than an unauthorized absence that turns a leave dispute into a criminal charge.
A Related Case Result
An unauthorized absence does not have to end at the maximum. One Army soldier charged with AWOL obtained a reduced sentence at court martial.
Past results do not guarantee future outcomes. Every case turns on its own facts.
If You Are Already Absent
If you are currently in an unauthorized absence status, turning yourself in generally puts you in a better position than being apprehended. Apprehension is itself an aggravating factor in the punishment ranges. Before you take that step, speak with a defense attorney about how to do it and what to expect.
Call Joseph L. Jordan, Attorney at Law, at (888) 643-6254. Mr. Jordan is a former Army JAG prosecutor, and the conversation about how to return is one he has had many times.