Chapter 11: Article 86, UCMJ AWOL
§ 11:1
Elements
§ 11:2
Generally
§ 11:3
Failure to go to Appointed Place of Duty
§ 11:4
Absence from Unit, Organization, or Place of Duty
§ 11:5
Without Proper Authority
§ 11:6
§ 11:7
§ 11:8
§ 11:9
§ 11:10
§ 11:11
§ 11:12
§ 11:13
§ 11:14
Computing Duration, Voluntary Termination, and Involuntary Termination
Practice Pointers
Common Defenses
Statute of Limitations
Former Jeopardy
Impossibility
Duress
Standard Instructions
Maximum Punishments and Lesser Included Offenses
§ 11:1 – Elements
Failure to go to appointed place of duty
Going from appointed place of duty
Absence from unit, organization, or place of duty
and, if the absence was terminated by apprehension, add the element
Abandoning watch or guard
and, if the absence was with intent to abandon the accused’s guard, watch, or duty section, add the following element]
Absence from unit, organization, or place of duty with intent to avoid maneuvers or field exercises.
§ 11:2 – Generally
Articles 85 through 87 address offenses involving a service members who are absent from their without the authority to do so. The article was designed to address cases where a member is absent from his or her appointed place of duty through his or her own fault. Unlike desertion, absence without authority involves absences without a specific intent to remain permanently absent. For that reason, Article 86, unlike Article 85, is a general intent offense.
Notwithstanding the general intent nature of this Article, 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, however, the Court affirmed that a deliberate avoidance theory would satisfy the knowledge element for Article 86 offenses.[1] 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.”[2]
§ 11:3 – Failure to go to Appointed Place of Duty
Article 86 (1) creates criminal liability for a service member who is absent from a certain time and place of duty. In other words, the time and place of duty must be specifically described. A specification that lists a general place of duty – such as a unit – is fatally defective.[3]
The nature of the offense plainly permits the government to charge the absence as a violation of an order to report to a particular place of duty at a prescribed time under Article 92. The benefit, of course, is that the maximum punishment under Article 92 would be 6 months, rather than the 1 month permitted under Article 86. The Court of Appeals for the Armed Forces, however, has ruled that the maximum punishment for the violation of an order to report to a particular place of duty is the maximum punishment under Article 86 (1).[4] The ruling basically flows from the requirement that a lawful order be for the purpose of a proper military function and not for the purpose of increasing punishment. In that regard, if the order was not for the purpose of increasing punishment, then it is possible that the accused could be convicted and punished both for the absence and the violation of the order.[5]
§ 11:4 – Absence from Unit, Organization, or Place of Duty
Article 86 (3) creates the offense commonly known as absence without leave, or AWOL. There are several aggravated forms of AWOL that include an intent to avoid maneuvers, field exercises, and AWOL terminated by apprehension. A unit is any single military element. An organization refers to a larger command consisting of two or more units.[6] It is possible for an accused to be absent from more than one unit.[7] Defense counsel must pay attention to the unit alleged in the specification. This can sometimes be easily overlooked by a civilian counsel who may not have local knowledge of the composition of the various organizations on the installation. A failure to allege that the accused was required to be at a particular unit or organization or an allegation involving the wrong unit can be defective.[8]
Article 86 (1) and (2) use the term appointed place of duty, which as previously discussed requires a degree of specificity in drafting the charge. Article 86 (3) deliberately uses the term place of duty – which is more generic.
§ 11:5 – Without Proper Authority
The term “without proper authority” used in the statute is not well-defined. It is clear, however, that a service member who secures permission to be absent from a superior through the communication of false information, may be absent without proper authority.[9]
If the government fails to allege that the absence was without proper authority, counsel should be careful to preserve the record, as it is an element of the offense. Generally, a failure to follow unit checkout procedures by an accused who was granted leave is not without proper authority.[10]
§ 11:6 – Computing Duration, Voluntary Termination, and Involuntary Termination
As a threshold matter, the government needs to establish a beginning date for the absence.[11] Article 86 is not a continuing offense. The offense is complete when the accused leaves without proper authority.[12]
The absence is terminated by a return to military control. Telephone contact alone is not an effective return to military control.[13]
A voluntary return to military control occurs under the following circumstances:
There are generally three ways that the military can involuntarily terminate an absence:
Under Article 86, a continuous absence of no more than 24 hours is one day. A continuous absence of more than 24 hours, but less than 48 hours is two days. The hours of departure and return on different dates are assumed to be the same if not alleged or proved.
§ 11:7 – Practice Pointers
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. Voluntary surrender is plainly mitigating. Most commands are willing to entertain an administrative separation with an Other than Honorable characterization of service.
§ 11:8 – Common Defenses
-Statute of Limitations
-Mistake of Fact
-Running of the Statute of Limitations
-Former Jeopardy
-Impossibility
-Duress
§ 11:9 – Statute of Limitations
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.[16] 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.[17] 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).
Military courts do allow the government to prefer Article 86 charges against an accused with an open-ended termination date. This stops the running of the statute of limitations. The future addition of the termination date would be a permissible minor change to the charges.[18]
Of course, an accused can always waive the statute of limitations in exchange for a favorable guilty plea. That sort of strategy would make sense where there is other misconduct at issue.
§ 11:10 – Former Jeopardy
In United States v. Hayes, the accused was tried for the lesser included offense of Absence without Leave. The government later attempted to prosecute him for desertion. The prior AWOL trial barred the desertion charges.
§ 11:11 – Impossibility
There are sometimes occasions where circumstances beyond your client’s control result in the client being forced to remain away from his or her 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.
§ 11:12 – Duress
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.
§ 11:13 – Standard Instructions[DK1]
Standard Instructions (Citations taken from Department of the Army Pamphlet 27-9)
3-10-1 – Failing to go to or Leaving Place
3-10-2 – Absence from Unit, Organization, or Place of Duty
3-10-3 – Absence from Unit, Organization, or Place of Duty with Intent to Avoid Maneuvers or Field Exercises
3-10-4 – Abandoning Watch or Guard
§ 11:14 – Maximum Punishments
The maximum punishment under Article 86 (1) is confinement for 1 month and forfeiture of two-thirds pay for 1 month.
The maximum punishment under Article 86 (2), for absences not more than 3 days, is confinement for 1 month and forfeiture of two-thirds pay for 1 month. For absences more than 3 days, but less than 30 days, the maximum punishment is confinement for 6 months and forfeiture of two-thirds pay per month for 6 months. For absences more than 30 days, the maximum punishment is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year. If the absence is terminated by apprehension, then possible confinement is increased to 18 months.
The maximum punishment under Article 86 (3) is confinement for 3 months and forfeiture of two-thirds pay per month for 3 months.
The maximum punishment under Article 86 (4) is a bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.
The maximum punishment under Article 86 (5) is a bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.
The only lesser included offense is Article 80 attempts.
[1] United States v. Adams, 63 MJ 223 (2006).
[2] Benchbook Instruction 3-10-1.
[3] United States v. Sturkey, 50 CMR 110 (ACMR 1975); United States v. Coleman,34 MJ 1020 (ACMR 1992).
[4] United States v. Hargrove, 51 MJ 408 (CAAF 1999).
[5] United States v. Pettersen, 17 MJ 69 (CMA 1983).
[6] United States v. Vidal, 45 CMR 540 (ACMR 1972).
[7] United States v. Mitchell, 22 CMR 28 (CMA 1956).
[8] United States v. Kohlman, 21 CMR 793 (AFCMR 1956).
[9] United States v. Duncan, 60 MJ 973 (ACCA, 2005).
[10] United States v. Dukes, 30 MJ 793 (NMCMR 1990).
[11] United States v. Hardeman, 49 MJ 389 (CAAF 2004).
[12] United States v. Jackson, 20 MJ 83 (CMA 1985).
[13] United States v. Anderson, 1 MJ 688 (NCMR 1975).
[14] United States v. Coglin, 10 MJ 670 (ACMR 1981).
[15] United States v. Gudatis, 18 MJ 818 (AFCMR 1984).
[16] United States v. Miller, 38 MJ 121 (CMA 1993).
[17][17] United States v. Tunnel, 23 MJ 110 (CMA 1986).
[18] United States v. Reeves, 49 CMR 841 (ACMR 1975).
Elements
§ 11:2
Generally
§ 11:3
Failure to go to Appointed Place of Duty
§ 11:4
Absence from Unit, Organization, or Place of Duty
§ 11:5
Without Proper Authority
§ 11:6
§ 11:7
§ 11:8
§ 11:9
§ 11:10
§ 11:11
§ 11:12
§ 11:13
§ 11:14
Computing Duration, Voluntary Termination, and Involuntary Termination
Practice Pointers
Common Defenses
Statute of Limitations
Former Jeopardy
Impossibility
Duress
Standard Instructions
Maximum Punishments and Lesser Included Offenses
§ 11:1 – Elements
Failure to go to appointed place of duty
- That a certain authority appointed a certain time and place of duty for the accused;
- That the accused knew of that time and place;
- That the accused, without authority, failed to go to the appointed place of duty at the time prescribed.
Going from appointed place of duty
- That a certain authority appointed a certain time and place of duty for the accused;
- That the accused knew of that time and place; and,
- That the accused, without authority, went from the appointed place of duty after having reported such absence.
Absence from unit, organization, or place of duty
- That the accused absented himself or herself from his or her unit, organization, or place of duty at which he or she was required to be;
- That the absence was without authority from anyone competent to give him or her leave; and,
- That the absence was for a certain period of time.
and, if the absence was terminated by apprehension, add the element
- That the accused’s absence was terminated by apprehension.
Abandoning watch or guard
- That the accused was a member of a guard, watch, or duty;
- That the accused absented himself or herself from his or her guard, watch, or duty section;
- That absence of the accused was without authority;
and, if the absence was with intent to abandon the accused’s guard, watch, or duty section, add the following element]
- That the accused intended to abandon his or her guard, watch, or duty section.
Absence from unit, organization, or place of duty with intent to avoid maneuvers or field exercises.
- That the accused absented himself or herself from his or her unit, organization, or place of duty at which he or she was required to be;
- That the absence of the accused was without authority;
- That the absence was for a certain period of time;
- That the accused knew that the absence would occur during a part of a period of maneuvers or field exercises; and,
- That the accused intended to avoid all part of a period of maneuvers or field exercises.
§ 11:2 – Generally
Articles 85 through 87 address offenses involving a service members who are absent from their without the authority to do so. The article was designed to address cases where a member is absent from his or her appointed place of duty through his or her own fault. Unlike desertion, absence without authority involves absences without a specific intent to remain permanently absent. For that reason, Article 86, unlike Article 85, is a general intent offense.
Notwithstanding the general intent nature of this Article, 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, however, the Court affirmed that a deliberate avoidance theory would satisfy the knowledge element for Article 86 offenses.[1] 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.”[2]
§ 11:3 – Failure to go to Appointed Place of Duty
Article 86 (1) creates criminal liability for a service member who is absent from a certain time and place of duty. In other words, the time and place of duty must be specifically described. A specification that lists a general place of duty – such as a unit – is fatally defective.[3]
The nature of the offense plainly permits the government to charge the absence as a violation of an order to report to a particular place of duty at a prescribed time under Article 92. The benefit, of course, is that the maximum punishment under Article 92 would be 6 months, rather than the 1 month permitted under Article 86. The Court of Appeals for the Armed Forces, however, has ruled that the maximum punishment for the violation of an order to report to a particular place of duty is the maximum punishment under Article 86 (1).[4] The ruling basically flows from the requirement that a lawful order be for the purpose of a proper military function and not for the purpose of increasing punishment. In that regard, if the order was not for the purpose of increasing punishment, then it is possible that the accused could be convicted and punished both for the absence and the violation of the order.[5]
§ 11:4 – Absence from Unit, Organization, or Place of Duty
Article 86 (3) creates the offense commonly known as absence without leave, or AWOL. There are several aggravated forms of AWOL that include an intent to avoid maneuvers, field exercises, and AWOL terminated by apprehension. A unit is any single military element. An organization refers to a larger command consisting of two or more units.[6] It is possible for an accused to be absent from more than one unit.[7] Defense counsel must pay attention to the unit alleged in the specification. This can sometimes be easily overlooked by a civilian counsel who may not have local knowledge of the composition of the various organizations on the installation. A failure to allege that the accused was required to be at a particular unit or organization or an allegation involving the wrong unit can be defective.[8]
Article 86 (1) and (2) use the term appointed place of duty, which as previously discussed requires a degree of specificity in drafting the charge. Article 86 (3) deliberately uses the term place of duty – which is more generic.
§ 11:5 – Without Proper Authority
The term “without proper authority” used in the statute is not well-defined. It is clear, however, that a service member who secures permission to be absent from a superior through the communication of false information, may be absent without proper authority.[9]
If the government fails to allege that the absence was without proper authority, counsel should be careful to preserve the record, as it is an element of the offense. Generally, a failure to follow unit checkout procedures by an accused who was granted leave is not without proper authority.[10]
§ 11:6 – Computing Duration, Voluntary Termination, and Involuntary Termination
As a threshold matter, the government needs to establish a beginning date for the absence.[11] Article 86 is not a continuing offense. The offense is complete when the accused leaves without proper authority.[12]
The absence is terminated by a return to military control. Telephone contact alone is not an effective return to military control.[13]
A voluntary return to military control occurs under the following circumstances:
- The accused presents himself to competent military authority with the intention of returning to military duty.
- The accused properly identifies himself or herself and discloses his or her status as an absentee.
- The military authority, with knowledge of the accused’s status, exercises military control over the accused.[14]
There are generally three ways that the military can involuntarily terminate an absence:
- By exercising control over the accused by military authorities with knowledge of the accused’s status as an absentee.
- Through a duty to inquire into the accused’s status as an absentee.
- Through a circumstance where military authorities could have determined the accused’s status as an absentee through reasonable diligence.[15]
Under Article 86, a continuous absence of no more than 24 hours is one day. A continuous absence of more than 24 hours, but less than 48 hours is two days. The hours of departure and return on different dates are assumed to be the same if not alleged or proved.
§ 11:7 – Practice Pointers
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. Voluntary surrender is plainly mitigating. Most commands are willing to entertain an administrative separation with an Other than Honorable characterization of service.
§ 11:8 – Common Defenses
-Statute of Limitations
-Mistake of Fact
-Running of the Statute of Limitations
-Former Jeopardy
-Impossibility
-Duress
§ 11:9 – Statute of Limitations
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.[16] 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.[17] 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).
Military courts do allow the government to prefer Article 86 charges against an accused with an open-ended termination date. This stops the running of the statute of limitations. The future addition of the termination date would be a permissible minor change to the charges.[18]
Of course, an accused can always waive the statute of limitations in exchange for a favorable guilty plea. That sort of strategy would make sense where there is other misconduct at issue.
§ 11:10 – Former Jeopardy
In United States v. Hayes, the accused was tried for the lesser included offense of Absence without Leave. The government later attempted to prosecute him for desertion. The prior AWOL trial barred the desertion charges.
§ 11:11 – Impossibility
There are sometimes occasions where circumstances beyond your client’s control result in the client being forced to remain away from his or her 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.
§ 11:12 – Duress
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.
§ 11:13 – Standard Instructions[DK1]
Standard Instructions (Citations taken from Department of the Army Pamphlet 27-9)
3-10-1 – Failing to go to or Leaving Place
3-10-2 – Absence from Unit, Organization, or Place of Duty
3-10-3 – Absence from Unit, Organization, or Place of Duty with Intent to Avoid Maneuvers or Field Exercises
3-10-4 – Abandoning Watch or Guard
§ 11:14 – Maximum Punishments
The maximum punishment under Article 86 (1) is confinement for 1 month and forfeiture of two-thirds pay for 1 month.
The maximum punishment under Article 86 (2), for absences not more than 3 days, is confinement for 1 month and forfeiture of two-thirds pay for 1 month. For absences more than 3 days, but less than 30 days, the maximum punishment is confinement for 6 months and forfeiture of two-thirds pay per month for 6 months. For absences more than 30 days, the maximum punishment is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year. If the absence is terminated by apprehension, then possible confinement is increased to 18 months.
The maximum punishment under Article 86 (3) is confinement for 3 months and forfeiture of two-thirds pay per month for 3 months.
The maximum punishment under Article 86 (4) is a bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.
The maximum punishment under Article 86 (5) is a bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.
The only lesser included offense is Article 80 attempts.
[1] United States v. Adams, 63 MJ 223 (2006).
[2] Benchbook Instruction 3-10-1.
[3] United States v. Sturkey, 50 CMR 110 (ACMR 1975); United States v. Coleman,34 MJ 1020 (ACMR 1992).
[4] United States v. Hargrove, 51 MJ 408 (CAAF 1999).
[5] United States v. Pettersen, 17 MJ 69 (CMA 1983).
[6] United States v. Vidal, 45 CMR 540 (ACMR 1972).
[7] United States v. Mitchell, 22 CMR 28 (CMA 1956).
[8] United States v. Kohlman, 21 CMR 793 (AFCMR 1956).
[9] United States v. Duncan, 60 MJ 973 (ACCA, 2005).
[10] United States v. Dukes, 30 MJ 793 (NMCMR 1990).
[11] United States v. Hardeman, 49 MJ 389 (CAAF 2004).
[12] United States v. Jackson, 20 MJ 83 (CMA 1985).
[13] United States v. Anderson, 1 MJ 688 (NCMR 1975).
[14] United States v. Coglin, 10 MJ 670 (ACMR 1981).
[15] United States v. Gudatis, 18 MJ 818 (AFCMR 1984).
[16] United States v. Miller, 38 MJ 121 (CMA 1993).
[17][17] United States v. Tunnel, 23 MJ 110 (CMA 1986).
[18] United States v. Reeves, 49 CMR 841 (ACMR 1975).
