Written by attorney Stephen Carpenter Jr.

Military Defense 101: The AWOL Case

Proactive Measures Key to Getting Great Results

Under Article 86, UCMJ, servicemembers who "(1) fail to go to his appointed place of duty at a time prescribed; (2) goes from that place; or (3) absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed; shall be punished as a court-martial may direct."

If court-martialed, the potential maximum punishments dependent naturally on the period of the AWOL (Absence without leave).

For instance, after a 3 day AWOL the member may face reduction to E1, 1 month in confinement, forfeiture of 2/3 pay for 1 month. More than 3 day AWOL, but not more han 30 days could result in reduction to E1, 6 months confinement, forfeiture of 2/3 pay for 6 months. More than 30 days after "surrender" by the member: reduction to E1, 1 year confinement; total forfeitures for period of confinement, and dishonorable or bad conduct discharge for enlisted soldiers, dismissal for officers. More than 30 days and terminated by apprehension: reduction to E1, 18 months confinement, total forfeitures during period of confinement, dishonorable or bad conduct discharge for enlisted, and dismissal from service for officers.

If a uniformed member has been AWOL for sometime, perhaps 3 or more years, he or she stands the chance of being charged with desertion if apprehended by law enforcement. Desertion, under Article 85, UCMJ, involves "any member of the armed forces who (1) without authorirty goes or remains absent from his unit, organization or place of duty with intent to remain away therefrom permanently; (2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service...." The maximum punishment for desertion "in time of war" is life imprisonment, reduction to E1, total forfeitures, bad conduct or dishonorable discharge if enlisted and dismissal for officers. If the Government prosecutes under the "intent to avoid hazardous duty" (deployment to Afghanistan) theory, the member could be sentenced to 5 years confinement, be reduced to E1, total forfeitures, BCD, or dishonorable discharge for enlisted members and again dismissal from service for officers. And finally, as for the "catch-all" desertion charge, in all other cases if apprehended, the member may face 3 years confinement or if they turn themselves in 2 years in the brig.

As the above information makes crystal clear, there are a few keys to avoiding a lengthy sentence of confinement. First, hire a lawyer to negotiate your return to the service. Second, press your lawyer to get a general understanding from your command about "what" they are willing to recommend upon your return. Fortunately, most military commanders do not care for the court-martial route in AWOL cases, as the legal process can be long, messy and often not worth the time and effort. Even more significant is the fact that so long as the returned AWOL soldier is hanging around the unit, the commander cannot bring in another live body to replace him. As a result, the member's command will often just want the soldier "gone." The most expeditious means to discharge someone, without exception, is by using an adminsitrative discharge. In this sense, your lawyer should negotiate for an administrative discharge at the earliest opportunity. The member will have to waive a Other than Honorable (OTH) Discharge Board, but absent unusual circumstances, a OTH discharge is a gift because there is no confinement, no federal conviction and no punitive discharge (dishonorable, bad conduct or dismissal). Avoiding the aforementioned "punitive" discharge is significant becuase one is then still entitled to file for Disability with the Veterans' Administration.

A summary court-martial is another avenue that your lawyer may proffer to commands who are adament about the member serving time in confinement before discharge. The summary court officer can sentence a member to 30 days in confinement, but it does not result in a federal conviction.

Finally, the discharge review and corrections boards are a means for the member to address the possible upgrade of his or her discharge "after" they have been administratively separated from the service. Thus, arguably, a soldier AWOL for 5 years who might have been facing a life sentence and dishonorable discharge if he had been picked-up by local authorties, can, by turning himself in, and with some good lawyering, never step foot in confinement and perhaps someday have his discharge upgraded to an General under Honorable Conditions Discharge. Indeed, that would be great lawyering, which must be proactive to be successful in this very dangerous "time of war."

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