UCMJ ARTICLE 86: ABSENCE WITHOUT LEAVE

Executive Summary

Key Takeaway: UCMJ Article 86 criminalizes unauthorized absence when a service member fails to be present at their appointed place of duty, unit, or organization at the time prescribed without authority from proper authority. Unlike desertion, unauthorized absence requires no specific intent beyond the general intent to be absent without authority. Maximum punishment varies by duration and termination method, ranging from confinement for 1 month for absences not exceeding 3 days to confinement for 18 months (if terminated by apprehension) or 12 months (if terminated otherwise) for absences exceeding 30 days, plus possible bad conduct discharge and total forfeitures for longer absences.

What Article 86 Covers: Failure to go to appointed place of duty at prescribed time, going from appointed place of duty before being properly relieved, absenting oneself from unit, organization, or place of duty without authority, failure to remain at a given location when so ordered, abandoning watch or guard duty, and any absence from required location without permission from proper authority regardless of duration.

Critical Article 86 Elements:

• Unauthorized absence requires only general intent to be absent (no specific desertion intent such as permanent absence or avoiding hazardous duty is required)
• Authority to be absent must come from proper authority with power to grant such permission (authority from someone lacking power to authorize absence does not negate the offense)
• The absence must be without authority at the time of occurrence (subsequently granted authority or retroactive approval does not negate the completed offense)
• Duration of absence affects maximum punishment but not guilt (even brief absences of minutes or hours constitute the offense if all elements are present)
• Termination method affects maximum punishment for absences over 30 days (apprehension results in higher maximum than voluntary return or other termination)

 

Why Article 86 Cases Present Unique Challenges: Distinguishing unauthorized absence from desertion requires careful analysis of intent evidence to avoid overcharging or undercharging, determining who had authority to grant leave or approve absence often involves complex chain of command and regulatory interpretation, calculating exact absence duration may be complicated by time zone changes, duty schedule variations, or disputes about when absence began or ended, proving the accused knew of their duty requirement becomes critical when orders were informal or alleged to be miscommunicated, and negotiating voluntary return versus allowing apprehension significantly affects maximum punishment exposure.

Immediate Steps if Under Investigation: Exercise your right to remain silent under Article 31(b) if questioned about an absence or failure to report, do not attempt to explain reasons for absence or claim you had permission without defense counsel present as such explanations often provide evidence against innocent mistake defenses, preserve all documentation related to leave requests, approved leave forms, duty schedules, and communications about duty requirements, document any emergency or extenuating circumstances that prevented your timely return or reporting, and consult with experienced military defense counsel immediately before providing any statement about your absence or understanding of duty requirements.

Understanding UCMJ Article 86

Article 86 of the Uniform Code of Military Justice addresses unauthorized absence, commonly referred to as AWOL (Absent Without Leave). This provision criminalizes failures to be present at required locations at prescribed times without authority. Article 86 is among the most frequently charged offenses under the UCMJ because it encompasses a wide range of situations where service members fail to fulfill basic presence requirements.

The policy behind Article 86 recognizes that military effectiveness depends on reliable presence of service members at assigned locations. Unit operations, training, deployments, and missions require that commanders know where their personnel are and can depend on their presence when required. Unauthorized absences undermine this fundamental requirement and may leave units undermanned, missions compromised, and other service members burdened with additional duties.

Article 86 differs from Article 85 (Desertion) in that it requires no specific intent beyond the general intent to be absent without authority. A service member who absents themselves temporarily, intending to return, commits unauthorized absence rather than desertion. The lesser intent requirement makes Article 86 easier to prove but results in significantly lower maximum punishments than desertion.

Types of Unauthorized Absence Under Article 86

Article 86 encompasses several distinct forms of unauthorized absence:

Failure to Go to Appointed Place of Duty

Elements:

1. The accused was required to be at a certain appointed place of duty at a prescribed time
2. The accused knew of that requirement
3. The accused failed to go to that place at the prescribed time
4. The failure to go was without authority

Common scenarios:

• Failing to report for duty shift at prescribed time
• Missing required formation
• Failing to report for training, exercise, or deployment
• Not appearing for scheduled watch or guard duty
• Missing required appointments (medical, legal, administrative)

Knowledge requirement:

The accused must have known of the duty requirement. If orders were never communicated, or the accused reasonably believed they were not required to be present, the knowledge element may not be satisfied.

Going From Appointed Place of Duty

Elements:

1. The accused was required to remain at a certain appointed place of duty
2. The accused went from that place
3. The going was before the accused was properly relieved
4. The going was without authority

Common scenarios:

• Leaving duty station before shift completion
• Departing from watch or guard post before relief arrives
• Leaving training area during required training period
• Departing from required formation or assembly
• Leaving work area during duty hours without permission

Proper relief requirement:

Service members must remain at duty stations until properly relieved. Self-relief or leaving because another person was expected to arrive is generally insufficient.

Absenting Oneself From Unit, Organization, or Place of Duty

Elements:

1. The accused absented themselves from their unit, organization, or place of duty
2. The absence was without authority from proper authority

Common scenarios:

• Extended absence beyond authorized leave
• Failing to return from leave on time
• Remaining absent after leave is canceled or curtailed
• Departing from unit area without proper authorization
• Missing movement of unit or organization

This is the most common form of Article 86 violation and encompasses traditional AWOL scenarios.

Failure to Remain at Given Location

Elements:

1. The accused was ordered or directed to remain at a given location
2. The accused went from that location
3. The going was without authority

Common scenarios:

• Leaving barracks or quarters when restricted
• Departing from medical facility when ordered to remain
• Leaving designated assembly area when directed to remain
• Going from confined location when restriction imposed

Duration Categories and Maximum Punishment

Maximum punishment for unauthorized absence depends on duration and termination method:

Absences Not Exceeding 3 Days

Maximum punishment:

• Confinement for 1 month
• Forfeiture of two-thirds pay per month for 1 month
• Reduction to lowest enlisted grade

Typical scenarios:

• Missing single duty day or weekend duty
• Brief overstay of authorized leave
• Short absence for personal reasons

Absences More Than 3 Days But Not More Than 30 Days

Maximum punishment:

• Confinement for 6 months
• Forfeiture of two-thirds pay per month for 6 months
• Reduction to lowest enlisted grade

Typical scenarios:

• Extended leave overstay
• Absence of one to four weeks
• Missing multiple duty periods

Absences Exceeding 30 Days

Maximum punishment depends on termination method:

Terminated by apprehension:

• Bad conduct discharge
• Forfeiture of all pay and allowances
• Reduction to lowest enlisted grade
• Confinement for 18 months

Terminated by other means (voluntary return, surrender, circumstances beyond accused's control):

• Bad conduct discharge
• Forfeiture of all pay and allowances
• Reduction to lowest enlisted grade
• Confinement for 12 months

Termination method determination:

Apprehension occurs when military or civilian authorities take the accused into custody against their will. Voluntary return occurs when the accused returns to military control of their own accord. The distinction significantly affects maximum punishment, with voluntary return resulting in 6 months less maximum confinement.

Sentencing Reform for Offenses After 27 December 2023

For offenses committed on or after 27 December 2023, maximum punishments are subject to sentencing parameters established by Executive Order 14103. Under this category-based system, actual maximum confinement may be limited by the sentencing category regardless of traditional Article 86 maximums. Consult with defense counsel regarding applicable category limits for specific cases.

Calculating Absence Duration

Determining absence duration can be complex:

Start of absence:

• For failure to go: When the accused was required to be present but was not
• For going from: When the accused departed without authority
• For unit absence: When the accused was first absent without authority

End of absence:

• Apprehension: When taken into custody
• Voluntary return: When the accused returns to military control and reports
• Circumstances beyond control: When the accused loses ability to return (incarceration, hospitalization)

Crediting time:

Some time during absence may not be counted against the accused:

• Time when proper authority existed (if leave was granted mid-absence)
• Time when return was impossible (natural disaster, serious illness)
• Time in civilian custody preventing return

Aggregating multiple absences:

Multiple separate unauthorized absences may be charged as separate specifications or aggregated into single specifications by duration category. Strategic charging decisions affect potential punishment.

Authority to Be Absent

The absence must be without authority from proper authority:

Who Constitutes Proper Authority

Proper authority to grant leave or authorize absence typically includes:

• Commanding officer or officer in charge
• Officer to whom authority has been properly delegated
• Authorized leave-approving officials per service regulations
• Immediate superiors with granted authority for brief absences

Authority generally must come from someone in the chain of command with power to excuse presence requirements. Peers, subordinates, or personnel outside the chain of command typically lack authority to authorize absences.

Forms of Authority

Authority may be:

• Formal approved leave (ordinary, emergency, convalescent)
• Pass authorizing absence for specified period
• Liberty for off-duty periods
• Verbal permission from proper authority for brief absence
• Standing orders authorizing certain absences under specified circumstances

Retroactive Authority

Authority granted after absence begins or after return does not negate the completed offense. If a service member was unauthorized at the time of absence, subsequent approval does not erase the crime. However, retroactive authority may:

• Affect command charging decisions
• Provide mitigation evidence
• Demonstrate misunderstanding rather than intentional wrongdoing

Defenses to Article 86 Charges

Authorized Absence

If the accused had proper authority to be absent, no violation occurred. Defense may establish:

• Approved leave covered the absence period
• Proper authority granted permission for the absence
• Standing orders authorized the type of absence
• Emergency leave was properly requested and granted

Documentation of authority is critical. Leave forms, pass documentation, and written or credible verbal permissions provide strongest evidence.

Lack of Knowledge of Duty Requirement

If the accused did not know they were required to be at a specific place at a specific time, the knowledge element may not be satisfied. Defense may establish:

• Orders were never communicated to the accused
• The accused was not present when orders were given
• Reasonable confusion about duty schedule or requirements
• Conflicting orders from different authorities
• The accused reasonably believed they were not required

Good faith mistakes about duty requirements may negate criminal liability, though they may still result in administrative consequences.

Impossibility of Performance

If circumstances beyond the accused's control prevented timely presence, defense may establish:

• Transportation failure preventing return (missed flight, car breakdown)
• Serious illness or injury preventing travel
• Natural disaster or emergency preventing return
• Civilian incarceration preventing return
• Other circumstances making timely return impossible despite reasonable efforts

The accused must demonstrate they took reasonable steps to notify command and return as soon as possible once circumstances permitted.

Mistake About Authority

If the accused reasonably believed they had authority to be absent, this may provide defense or mitigation:

• Reasonable reliance on erroneous information from apparent authority
• Confusion about leave dates or approval status
• Reliance on previous permission patterns
• Miscommunication about authorized absence period

The mistake must be reasonable and in good faith. Willful blindness or negligent failure to verify does not constitute reasonable mistake.

Confinement or Restraint

If the accused was in civilian custody or otherwise restrained during absence, inability to return may provide complete or partial defense:

• Civilian arrest and incarceration
• Hospitalization preventing departure
• Quarantine or isolation orders
• Other lawful restraints on movement

The accused must demonstrate they attempted to notify military authorities and returned promptly once released.

If you are under investigation for unauthorized absence or have been charged under Article 86, contact Joseph L. Jordan at (888) 643-6254 immediately. Early legal intervention can prevent charges, negotiate lesser offenses, or position you for voluntary return to minimize maximum punishment.

Voluntary Return Strategy

For service members currently absent, voluntary return provides significant benefits:

Reduced Maximum Punishment

For absences over 30 days, voluntary return results in 6 months less maximum confinement than termination by apprehension (12 months versus 18 months maximum).

Demonstrates Abandonment of Desertion Intent

If there is any possibility of desertion charges, voluntary return strongly supports defense that the accused never intended permanent absence and abandoned any temporary desertion intent.

Improves Charging and Sentencing Posture

Commanders and prosecutors view voluntary return more favorably than apprehension. This may result in:

• Lesser charges (unauthorized absence rather than desertion)
• More lenient sentencing recommendations
• Greater willingness to consider administrative separation rather than court-martial
• More favorable characterization of service

Coordinated Return Through Counsel

Defense counsel can facilitate voluntary return by:

• Negotiating surrender terms
• Presenting context showing lack of desertion intent
• Ensuring proper treatment upon return
• Positioning mitigation evidence
• Coordinating mental health evaluation if needed

Service members considering return should consult defense counsel before returning to maximize the benefits of voluntary return and protect their rights during the return process.

Special Situations

Missing Movement

Intentionally missing the movement of a ship, aircraft, or unit may be charged under Article 87 (Missing Movement) rather than or in addition to Article 86. Article 87 carries harsher maximum punishment and requires proof of specific intent, making it distinct from simple unauthorized absence.

AWOL Terminated by Desertion

If a service member who is initially AWOL forms desertion intent during the absence, the unauthorized absence may be terminated and desertion may begin at the point intent forms. The government may charge both offenses for different time periods, or charge only desertion for the entire absence.

Multiple Specifications

Prosecutors may charge multiple specifications of unauthorized absence for:

• Different absence periods
• Different types of Article 86 violations during same general timeframe
• Aggregating absences by duration category

Defense should evaluate whether multiple specifications constitute improper multiplicity (charging the same conduct multiple times).

Administrative Consequences

Beyond criminal punishment, unauthorized absence creates administrative consequences:

• Loss of pay for absence period
• Debt to government for unearned pay or allowances
• Loss of promotion eligibility
• Bar to reenlistment
• Administrative separation processing
• Negative performance evaluations
• Loss of security clearance

Your Rights During AWOL Investigations

Service members under investigation for unauthorized absence retain important constitutional and statutory protections:

Article 31(b) Rights

Before any questioning regarding suspected offenses, you must receive warnings:

• You are suspected of an offense
• The nature of the suspected offense
• You have the right to remain silent
• Any statement may be used against you in court-martial or other proceedings

These warnings apply to all official questioning about offenses, regardless of custody.

Right to Counsel

You have the right to consult with defense counsel before and during questioning:

• Right to appointed military defense counsel at no cost
• Right to retain civilian counsel at your own expense
• Right to have counsel present during any questioning
• Right to stop questioning at any time to consult with counsel

Protection Against Self-Incrimination

You cannot be compelled to provide incriminating statements. Silence cannot be used as evidence of guilt. This protection applies throughout investigation and prosecution.

Fourth Amendment Protections

You are protected against unreasonable searches and seizures. Investigators must have proper authorization to search your belongings, quarters, electronic devices, or other property. Do not consent to searches without first consulting with defense counsel.

The Importance of Early Legal Consultation

Unauthorized absence cases often turn on documentation, authority, and intent. Statements made during initial investigation attempting to explain absence or claim authority frequently undermine defenses or provide evidence for upgraded charges.

Consulting with a skilled military attorney at the earliest indication of investigation provides critical benefits:

Protection of rights: Counsel ensures Article 31(b) rights are properly invoked and respected, preventing statements that could upgrade charges to desertion or aggravate circumstances.

Authority documentation: Counsel can obtain and present documentation of authorized absence that may prevent charges from being filed.

Voluntary return coordination: For service members currently absent, counsel can negotiate voluntary return terms to minimize punishment exposure.

Charging strategy: Early presentation of mitigating circumstances, emergency situations, or authority issues may result in lesser charges or administrative rather than criminal resolution.

Mental health evaluation: If absence was related to mental health crisis, early evaluation may provide complete defense or significant mitigation.

When You Should Contact Defense Counsel

Consult with military defense counsel immediately if:

• You are questioned about failure to report or unauthorized absence
• You are currently absent and considering return
• Command indicates you are under investigation for absence
• You overstayed leave and are uncertain of your status
• You missed duty due to emergency and lacked ability to notify command
• You are uncertain whether you had proper authority for absence
• You receive notification of intent to prefer charges for absence

The earlier you consult counsel, the better positioned you are to protect your rights and achieve the best possible outcome.

Why Choose Joseph L. Jordan for Article 86 Defense

Joseph L. Jordan is a former Army Judge Advocate with extensive experience prosecuting and defending courts-martial. As a former military prosecutor, he understands how the government proves unauthorized absence, distinguishes it from desertion, and seeks maximum punishment based on duration and circumstances.

Our defense approach includes:

Authority analysis: We thoroughly investigate whether proper authority existed for the absence, examining leave documentation, verbal permissions, and regulatory compliance.

Duration challenge: We precisely calculate absence periods, identify creditable time, and challenge government duration calculations that may affect maximum punishment.

Intent evaluation: We analyze evidence to ensure charges reflect unauthorized absence rather than improperly upgraded desertion charges.

Voluntary return coordination: For service members currently absent, we facilitate voluntary return to minimize punishment exposure and demonstrate abandonment of any desertion allegations.

Mitigation development: We present compelling evidence of emergency circumstances, mental health factors, impossibility of timely return, or other mitigating factors.

We represent service members worldwide at every stage of unauthorized absence investigation and prosecution.

Immediate Steps if You Are Under Investigation

If you are being investigated for unauthorized absence:

Invoke your right to remain silent: Do not explain reasons for absence, claim you had authority, or describe your intentions without defense counsel present. State clearly: "I wish to exercise my right to remain silent under Article 31 and consult with defense counsel before answering questions."

Preserve all documentation: Save leave forms, pass documents, communications about duty requirements, evidence of emergency situations, transportation documentation, and any other records related to your absence or authority.

Do not create false documentation: Do not alter dates on leave forms, create backdated documents, or ask others to provide false statements about authority. Such actions create additional criminal liability.

Document emergency circumstances: If absence resulted from emergency, document the emergency situation, steps taken to notify command, and reasons timely return was impossible.

Contact defense counsel immediately: Call (888) 643-6254 to speak with Joseph L. Jordan about your case. Early consultation protects your rights and strengthens your defense.

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Frequently Asked Questions About UCMJ Article 86

What is unauthorized absence under Article 86?

Unauthorized absence is failing to be present at one's appointed place of duty, unit, or organization at the prescribed time without authority from proper authority. It requires only general intent to be absent without authority, unlike desertion which requires specific intent such as permanent absence or avoiding hazardous duty.

What is the difference between AWOL and desertion?

AWOL (unauthorized absence under Article 86) requires only general intent to be absent without authority. Desertion (Article 85) requires specific intent to remain away permanently, avoid hazardous duty, or (for officers) absence before resignation acceptance. Desertion carries much harsher maximum punishment ranging from 2 to 5 years confinement, while AWOL maximum ranges from 1 month to 18 months depending on duration.

What elements must prosecutors prove for Article 86 conviction?

Elements vary by type of unauthorized absence. For the most common form (absenting from unit), prosecutors must prove: (1) the accused absented themselves from their unit, organization, or place of duty, and (2) the absence was without authority from proper authority. For failure to go to appointed place of duty, prosecutors must additionally prove the accused knew of the requirement and the prescribed time.

How is AWOL duration calculated?

Duration begins when the accused was first absent without authority and ends when absence terminates by apprehension, voluntary return, or circumstances beyond control. Time when proper authority existed or when return was impossible may not count toward total duration. Time zone changes, duty schedule variations, and crediting of time may complicate calculations.

What are the maximum punishments for AWOL?

Maximum punishment depends on duration and termination method. For absences not exceeding 3 days, 1 month confinement. For 3 to 30 days, 6 months confinement. For over 30 days terminated by apprehension, bad conduct discharge, total forfeitures, and 18 months confinement. For over 30 days terminated by other means, bad conduct discharge, total forfeitures, and 12 months confinement. For offenses after 27 December 2023, sentencing category limits may apply.

Does termination method affect punishment?

Yes, significantly. For absences over 30 days, termination by apprehension results in maximum 18 months confinement, while voluntary return or other termination results in maximum 12 months. Voluntary return also demonstrates lack of desertion intent and creates more favorable command and sentencing posture.

Who can authorize absence from duty?

Proper authority typically includes commanding officers, officers in charge, officers with delegated leave-approval authority, and immediate superiors with granted authority for brief absences. Authority must generally come from someone in the chain of command with power to excuse presence requirements. Peers, subordinates, or personnel outside the chain typically lack authority.

Can absence be authorized retroactively?

Authority granted after absence begins does not negate the completed offense. However, retroactive authority may affect command charging decisions, provide mitigation evidence, and demonstrate misunderstanding rather than intentional wrongdoing. If proper authority existed at the time of absence, no violation occurred.

What is the difference between apprehension and voluntary return?

Apprehension occurs when military or civilian authorities take the accused into custody against their will. Voluntary return occurs when the accused returns to military control of their own accord. For absences over 30 days, the distinction means 6 months difference in maximum confinement (18 months for apprehension versus 12 months for voluntary return).

What are the main defenses to AWOL charges?

Main defenses include authorized absence (proper authority granted permission), lack of knowledge of duty requirement (orders not communicated or reasonable confusion), impossibility of performance (circumstances beyond control prevented timely return), mistake about authority (reasonable belief of permission), and confinement or restraint (civilian custody or other lawful restraint prevented return).

Can someone be charged with both AWOL and desertion?

Yes, for different time periods. If a service member is initially AWOL and later forms desertion intent, prosecutors may charge both offenses. Alternatively, if desertion cannot be proven, the accused may be convicted of the lesser included offense of unauthorized absence for the same period.

What should service members currently AWOL do?

Consult with defense counsel immediately before returning. Counsel can coordinate voluntary return to minimize punishment exposure, negotiate surrender terms, present context showing lack of desertion intent, and position mitigation evidence. Voluntary return significantly reduces maximum punishment and improves charging and sentencing outcomes compared to apprehension.

Can missing a single formation or duty day result in AWOL charges?

Yes. Even brief absences of hours constitute unauthorized absence if all elements are present. For absences not exceeding 3 days, maximum punishment is 1 month confinement. However, commanders may address brief absences through non-judicial punishment or administrative counseling rather than court-martial.

What happens if emergency prevented return from leave?

If genuine emergency or circumstances beyond control prevented timely return, this may provide complete or partial defense. The accused must demonstrate they took reasonable steps to notify command and return as soon as circumstances permitted. Documentation of the emergency and efforts to notify is critical.

Do I need a lawyer for AWOL charges?

Yes. Even seemingly simple unauthorized absence cases involve complex issues of authority, duration calculation, intent analysis, and potential for upgraded desertion charges. Early consultation with experienced military defense counsel protects rights, preserves defenses, coordinates voluntary return if applicable, and significantly improves outcomes.

How does AWOL affect military career and benefits?

Beyond criminal punishment, AWOL creates administrative consequences including loss of pay during absence, debt to government for unearned pay, loss of promotion eligibility, bar to reenlistment, potential administrative separation, negative evaluations, and loss of security clearance. Bad conduct discharge from AWOL conviction results in loss of most veterans' benefits.

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For immediate consultation regarding Article 86 charges or investigations, contact Joseph L. Jordan at (888) 643-6254. Experienced military defense representation for service members worldwide.

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Important Notice: This information is provided for educational purposes and does not constitute legal advice. Every case involves unique facts requiring individualized legal analysis. Reading this information does not create an attorney-client relationship. For advice specific to your situation, consult with a qualified military defense attorney.