Being accused of AWOL or desertion is a stressful event for both service members and family members. Usually, the absence from military duty was related to:

Family crisis;
Medical issues;
Mental health issues;
Financial Issues; or,
Some combination of all of the above.

Unfortunately, a general distrust of the unit or command climate often contributes to the decision to go AWOL or desert. That same distrust makes it difficult to return to service. For those reasons, experienced counsel can really make a world of difference in these cases.

Articles 85 through 87 of the Uniform Code of Military Justice (UCMJ) address offenses involving a service members who are absent from their without the authority to do so. The law was designed to address cases where a member is absent from his or her appointed place of duty basically through his or her own fault. Unlike desertion, absence without authority involves absences without an intent to remain permanently absent.

The offenses of failure to go to an appointed place of duty and going from an appointed place of duty (leaving the place of duty) both require actual knowledge of the appointed time and place of duty. In United States v. Adams, the Court affirmed that a deliberate avoidance theory would suffice for prosecution. In other words, there are circumstances were an accused will deliberately avoid learning of his or her appointed time and place of duty. Deliberate avoidance may not help the accused escape liability under Article 86. The benchbook instruction, however, states that “knowledge cannot be established by mere negligence, foolishness, or even stupidity on the part of the accused.”

It is important to get counsel involved if possible as soon as you can. As a threshold matter, the government needs to establish a beginning date for the absence.

An absence is terminated by a return to military control. Telephone contact alone is not an effective return to military control. It certainly helps your cause when your return to military control is voluntary.

There are some unusual cases where we are able to secure a separation from military service without the service member having to return to military control. Those are exceptional cases under specific circumstances. You would have to call to discuss those cases.

Absence without leave cases are commonly processed administratively without a court-martial. Often, the forum can depend on where and how the accused is apprehended.

Some common defenses include:

Expiration of the statute of limitations
Mistake of fact
Former Jeopardy
Impossibility
Duress

Article 43 provides for a statute of limitations of five years for most offenses under the UCMJ. Under Article 43 (a), the statute of limitations may not apply during wartime. If the unauthorized absence began in peacetime, the five year statute of limitations will apply. For purposes of calculating the statute of limitations, courts will count from the date the absence began to the day before receipt of charges by the summary court-martial convening authority. The burden of proof of demonstrating that the charges are within the statute of limitations falls on the government. That rule is found in Rule for Courts-Martial 905 (c)(2)(B).

There are also sometimes occasions where circumstances beyond your control result in you being forced to remain away from your unit. Medical conditions, of course, are easy for the defense to substantiate. The defense of impossibility, however, overlaps with the requirement that the government prove a specific intent to remain away from the unit or ship.

There are also times where the client may fear return to military control. In addition to a fear of bodily harm or death, some clients may fear sexual harassment. The bottom line is that any defense of duress must be reasonable. Experienced defense counsel is critical in those cases.

The bottom line is that many people go AWOL on a regular basis. It is common defense that our firm handles regularly. Part of the fear is the fear of the unknown. We can help you understand the process, open lines of communication, and resolve the AWOL status with the least amount of burden possible.

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