Being absent from your military unit without authorization can lead to charges under the Uniform Code of Military Justice (UCMJ), but AWOL and desertion are not the same offense. AWOL, or unauthorized absence (UA), generally falls under Article 86. Desertion is charged under Article 85 and requires additional proof of specific intent, such as an intent to remain away permanently. That distinction can substantially change the charges and potential punishment you face.
Experienced Defense for AWOL and Desertion Cases
At Court Martial Law, we represent service members facing allegations of AWOL, UA, and desertion. Whether you are currently away from your unit, have returned to military control, or have already been charged, we can assess the circumstances and help you determine what to do next. We offer:
- Focused military defense representation: Our attorneys handle military justice matters involving UCMJ charges, administrative actions, and courts-martial.
- Representation wherever you serve: We represent service members across the United States and around the world.
- Defense based on the actual charge: We examine whether the evidence supports Article 86 AWOL or the additional intent required for Article 85 desertion.
- Guidance before you return: If you are currently absent, we can explain what may happen when you return to military control and help you prepare for the process.
If you are facing an AWOL or desertion allegation, contact Court Martial Law to discuss your circumstances and the options available to you.
What Is AWOL or Unauthorized Absence Under Article 86?
Article 86 prohibits several forms of unauthorized absence. A service member may violate Article 86 by failing to report to an appointed place of duty, leaving that place without authority, or remaining absent from a unit or required place of duty without authorization.
Terminology varies by service. AWOL (Absent Without Leave) and UA (Unauthorized Absence) generally describe conduct prosecuted under Article 86.
Common situations include failing to report for scheduled duty, leaving a duty station without permission, or failing to return when authorized leave expires.
The duration and circumstances of the absence can affect both how the case is handled and the potential punishment.
What Is the Difference Between AWOL and Desertion?
Desertion under Article 85 requires more than proof that a service member was absent without permission.
Desertion Requires Specific Intent
One form of desertion requires the government to prove that the service member intended to remain away permanently. Article 85 also covers certain absences involving an intent to avoid hazardous duty or shirk important service.
A lengthy absence, therefore, does not automatically constitute desertion.
Evidence of intent may include statements or actions before and during the absence, efforts to conceal identity or location, disposal of military property, civilian employment, or circumstances surrounding the service member’s return.
What Happens If You Are Accused of AWOL or Desertion?
An unauthorized absence does not automatically result in a court-martial. Depending on the circumstances, a command may pursue administrative action, nonjudicial punishment, administrative separation, or court-martial charges.
Important factors can include:
- How long the absence lasted
- Why the service member left
- Whether the service member intended to return
- Whether the absence ended voluntarily or by apprehension
- The service member’s prior record
These facts can affect both the offense charged and the potential consequences.
What If You Are Currently AWOL?
Waiting longer does not necessarily improve the situation. At the same time, returning without knowing what to expect can leave you unprepared for questioning, restriction, or disciplinary proceedings.
Before returning, a military defense attorney can help you understand your status, evaluate potential charges, and prepare for what may happen when you report back to military control.
If you have already returned or been apprehended, be cautious about statements concerning why you left or what you intended. Those statements can become evidence in determining whether the government pursues AWOL or desertion charges.
What Are the Potential Punishments for AWOL and Desertion?
There is no single punishment for unauthorized absence. Maximum punishment under Article 86 depends on the particular offense, the length of the absence, and circumstances such as whether it ended by apprehension.
Desertion carries greater potential punishment because Article 85 requires additional intent. Depending on the charge and disposition, consequences may include reduction in rank, forfeiture of pay, confinement, administrative separation, or a punitive discharge following a qualifying court-martial conviction.
The distinction between Articles 85 and 86 can therefore have substantial consequences for a service member’s case.
What Defenses May Apply to AWOL or Desertion Charges?
Defense strategy begins with the elements the government must prove rather than assuming that an absence automatically establishes the charged offense.
Challenging Intent
In a desertion case, the government must establish the required specific intent. Evidence that a service member intended to return may directly challenge an allegation of desertion with intent to remain away permanently.
Challenging Whether the Absence Was Unauthorized
Article 86 requires an absence without authority. Leave records, orders, communications with command, and other documentation may become important when authorization is disputed.
Examining the Circumstances of the Absence
The events leading to an absence can also matter. Counsel may examine communications, medical or personal circumstances, the service member’s prior record, conduct while absent, and how the absence ended.
Even when an unauthorized absence occurred, those facts can influence charging, case disposition, and sentencing.
Talk to a Military AWOL and Desertion Defense Attorney
An AWOL or desertion allegation can threaten your military career, discharge characterization, finances, and freedom. An extended absence does not automatically establish desertion, and being accused does not eliminate your right to challenge the government’s evidence.
At Court Martial Law, we defend service members facing Article 85 desertion and Article 86 AWOL or UA allegations. We can determine how your absence is being classified, examine the evidence concerning your intent, and prepare you for the military justice process ahead.
If you are currently absent, have been reported as a deserter, or are facing disciplinary action after returning, contact us today for a case evaluation.
Frequently Asked Questions
How long must you be AWOL before it becomes desertion?
There is no set number of days after which AWOL automatically becomes desertion. Desertion requires proof of specific intent, such as an intent to remain away permanently. The length of an absence may be evidence of intent, but duration alone does not establish Article 85 desertion.
What happens when a service member returns after being AWOL?
The service member may be questioned, placed under restrictions, processed by the command, or subjected to disciplinary action. The response depends on the length and circumstances of the absence, the service member’s record, and whether AWOL or desertion is being considered.
Can you go to jail for being AWOL from the military?
Yes. Confinement is an authorized punishment for certain Article 86 offenses when prosecuted at court-martial. However, not every AWOL allegation results in a court-martial, and the potential punishment depends on the specific offense and circumstances.
Can the military charge you with desertion if you intended to return?
Intent is central to a desertion charge based on an alleged intent to remain away permanently. If the government cannot prove that intent beyond a reasonable doubt, it may not be able to establish that form of Article 85 desertion, although Article 86 liability may still be an issue.
