THE LAWFULNESS OF ORDERS.
Orders from superiors requiring the performance of military duties are presumed to be lawful. MCM, pt. IV, ¶ 14c(2)(a)(i); United States v. McDaniels, 50 M.J. 407 (C.A.A.F. 1999) (order to not drive personal vehicle after diagnosis of narcolepsy); United States v. Nieves, 44 M.J. 96 (C.A.A.F. 1996) (order prohibiting discussions with witnesses); United States v. New, 55 M.J. 95 (C.A.A.F. 2001) (order requiring soldier to wear United Nations blue beret and insignia). 

A superior’s order is presumed to be lawful and is disobeyed at the subordinate’s peril. To sustain the presumption, the order must relate to military duty, it must not conflict with the statutory or constitutional rights of the person receiving the order, and it must be a specific mandate to do or not to do a specific act. In sum, an order is presumed lawful if it has a valid military purpose and is a clear, specific, narrowly drawn mandate. United States v. Moore, 58 M.J. 466 (C.A.A.F. 2003).

The dictates of a person’s conscience, religion, or personal philosophy cannot excuse disobedience. United States v. Stockman, 17 M.J. 530 (A.C.M.R. 1973).

The order must relateto military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a unit and directly with the maintenance of good order in the armed forces. MCM, pt. IV, ¶ 14c(2)(a)(iii). 

The order can affect otherwise private activity. United States v. McDaniels, 50 M.J. 407 (C.A.A.F. 1999) (order to not drive personal vehicle after diagnosis of narcolepsy); United States v. Hill, 49 M.J. 242 (C.A.A.F. 1999) (no-contact order issued by military police had valid military purpose of maintaining good order and discipline in the military community and to protect the alleged victim while during the investigation); United States v. Padgett, 48 M.J. 273 (C.A.A.F. 1998) (order requiring 25-year-old service member to terminate his romantic relationship with 14-year-old girl had valid military purpose); United States v. Milldebrandt, 25 C.M.R. 139 (C.M.A. 1958) (order to report, while on leave, financial conditions unrelated to the military did not have valid military purpose).

An order that has for its sole object a private end is unlawful, but an order that benefits the command as well as serving individuals is lawful. United States v. Robinson, 20 C.M.R. 63 (C.M.A. 1955) (use of enlisted personnel in Officers’ Open Mess at Fort McNair).

Orders extending punishments beyond those lawfully imposed are illegal. United States v. McCoy, 30 C.M.R. 68 (C.M.A. 1960) (order to continue extra duty after punishment imposed under Article 15 already completed).

“Extra training” must be oriented to improving the soldier’s performance of military duties. Such corrective measures assume the nature of training or instruction, not punishment. MCM, pt. I, ¶ 1g; AR 600-20, ¶ 4-6b (11 Feb 2009); seeUnited States v. Hoover, 24 M.J. 874 (A.C.M.R. 1987) (requiring accused to live in pup tent for 3 weeks between the hours of 2200 and 0400 was unlawful punishment).

An order that is “arbitrary and capricious, overly broad in scope, or to impose an unjust limitation on a personal right” is not lawful. United States v. Milldebrandt, 25 C.M.R. 139 (C.M.A. 1958) (order to report, while on leave, financial conditions unrelated to the military was not lawful); United States v. Spencer, 29 M.J. 740 (A.F.C.M.R. 1989) (order to turn over all civilian medical records to military clinic by specific date was unlawful, because it was broader and more restrictive of private rights and personal affairs than required by military needs and provided for by service regulation); United States v. Jeffers, 57 M.J. 13 (C.A.A.F. 2002) (no social contact order with female in unit with whom accused had adulterous relationship not overbroad). 1.Marriage. Regulations reasonably restricting marriages of foreign-based service personnel to local nationals are legal. United States v. Wheeler, 30 C.M.R. 387 (C.M.A. 1961) (“a military commander may, at least in foreign areas, impose reasonable restrictions on the right of military personnel of his command to marry”); United States v. Nation, 26 C.M.R. 504 (C.M.A. 1958) (six-month waiting period was unreasonable and arbitrary restraint on the personal right to marry). 2.“Safe sex” order to servicemember infected with HIV is lawful. United States v. Dumford, 30 M.J. 137 (C.M.A. 1990); United States v. Womack, 29 M.J. 88 (C.M.A. 1989).

A service member who violates the terms of a no-contact order is subject to punishment under either Article 90 or Article 92, without the necessity of proof that the contact was undertaken for an improper purpose. Public policy supports a strict reading of a no-contact order. A military commander who has a legitimate interest in deterring contact between a service member and another person is not required to sort through every contact to determine, after the fact, whether there was a nefarious purpose. United States v. Thompkins, 58 M.J. 43 (C.A.A.F. 2003).

Personal relationships and contacts. United States v. Hill, 49 M.J. 242 (C.A.A.F. 1999) (order to have no contact with alleged victim lawful); United States v. Padgett, 48 M.J. 273 (C.A.A.F. 1998) (order requiring 25-year-old service member to terminate his romantic relationship with 14-year-old girl lawful); United States v. Nieves, 44 M.J. 96 (C.A.A.F. 1996) (order prohibiting discussions with witnesses, during an investigation, was lawful); United States v. Aycock, 35 C.M.R. 130 (C.M.A. 1964) (order prohibiting accused from contacting witnesses concerning the charges was unlawful because it interfered with right to prepare a defense); United States v. Wysong, 26 C.M.R. 29 (C.M.A. 1958) (order “not to talk to or speak with any of the men in the company concerned with this investigation except in line of duty” was so broad in nature and all-inclusive in scope that it was illegal); United States v. Mann, 50 M.J. 689 (A.F. Ct. Crim. App. 1999) (order to “cease and refrain from any and all contact of any nature” with enlisted member with whom the accused allegedly fraternized, which indicated that accused’s counsel had unrestricted access, was lawful); United States v. Button, 31 M.J. 897 (A.F.C.M.R. 1990) (order not to go to family quarters, where alleged sexual abuse victim lived, was lawful), aff’d, 34 M.J. 139 (C.M.A. 1992); United States v. Hawkins, 30 M.J. 682 (A.F.C.M.R. 1990) (order to have no contact with alleged victims and witness, unless by the area defense counsel, was lawful); United States v. Wine, 28 M.J. 688 (A.F.C.M.R. 1989) (order to disassociate from neighbor’s estranged wife lawful); United States v. Moore, 58 M.J. 466 (C.A.A.F. 2003) (order “not to converse with the civilian workers” in the galley was lawful and not over broad when given after the accused violated a policy limiting interaction between civilian employees and servicemembers). 

Regulations establishing a minimum drinking age for service personnel in a command abroad are legal. United States v. Manos, 37 C.M.R. 274 (C.M.A. 1967). b)A military member may also be lawfully ordered not to consume alcoholic beverages as a condition of pretrial restriction, if reasonably necessary to protect the morale, welfare, and safety of the unit or the accused; to protect victims or potential witnesses; or to ensure the accused’s presence at the court-martial or pretrial hearings in a sober condition. United States v. Blye, 37 M.J. 92 (C.M.A. 1993). c)Order not to consume alcohol must have a reasonable connection to military needs; United States v. Stewart, 33 M.J. 519 (A.F.C.M.R. 1991) (order not to consume alcoholic beverages to see if the accused was an alcoholic was invalid); United States v. Kochan, 27 M.J. 574 (N.M.C.M.R. 1988) (order not to drink alcohol until 21-years old was illegal). 6.Loans. Orders restricting loans between service members may be lawful, if there is a sufficient connection between the military’s duty to protect the morale, discipline, and usefulness of its members. United States v. McClain, 10 M.J. 271 (C.M.A. 1981) (upholding conviction for violation of a regulation prohibiting loans between permanent party personnel and trainees at Fort Jackson); United States v. Smith, 1 M.J. 156 (C.M.A. 1975) (regulation prohibiting all loans for profit or any benefit without consent of commander, without a corresponding military need, was invalid as too restrictive); United States v. Giordano, 35 C.M.R. 135 (C.M.A. 1964) (order fixing a maximum legal rate of interest on loans among military members was lawful). 

United States v. James, 52 M.J. 709 (Army Ct. Crim. App. 2000) (order “not to write any more checks” was lawful). Contra United States v. Alexander, 26 M.J. 796 (A.F.C.M.R. 1988) (order “not to write any checks” was much too broad to be considered valid). 8.Regulations may proscribe the use of customs-free privileges in Korea for personal gain or profit. United States v. Lehman, 5 M.J. 740 (A.F.C.M.R. 1978). 9.As long as not unreasonable and not unduly humiliating or degrading, an order to produce a urine specimen under direct observation is lawful. Unger v. Ziemniak, 27 M.J. 349 (C.M.A. 1989).

​
C - 3510.Order to cooks to shower before reporting to work in the galley was lawful. United States v. Horner, 32 M.J. 576 (C.G.C.M.R. 1991). 11.Regulation prohibiting transportation of persons without prescribed travel documents on the Helmstadt-Berlin autobahn between former East and West Germany in a vehicle with United States military registration was lawful and was not a violation of human rights or the Thirteenth Amendment. United States v. Stockman, 17 M.J. 530 (A.C.M.R. 1983). 12.Regulations requiring members of the service to obtain approval from their commanders before circulating petitions on military installations are lawful. Brown v. Glines, 444 U.S. 348 (1979) (Air Force had substantial governmental interest unrelated to the suppression of free expression; while 10 U.S.C. § 1034 ensures that individual servicemen can write to members of Congress without sending the communication through official channels, it does not cover the general circulation of a petition within a military base); Secretary of the Navy v. Huff, 444 U.S. 453 (1979) (similar Navy regulation). E.Litigating the Issue of Lawfulness of the Order. Lawfulness of an order, although an important issue, is not a discrete element of a disobedience offense. Therefore, it is a question of law to be determined by the military judge. MCM pt. IV, ¶ 14c(2)(a). United States v. Jeffers, 57 M.J. 13 (C.A.A.F. 2002); United States v. New, 55 M.J. 95 (C.A.A.F. 2001); But see United States v. Mack, 65 M.J. 108 (C.A.A.F. 2007) (while the lawfulness of an order is a question of law to be determined by the military judge, submitting the question of lawfulness to a panel is harmless error when the accused fails to rebut the presumption of lawfulness)C - 34concerned with this investigation except in line of duty” was so broad in nature and all-inclusive in scope that it was illegal); United States v. Mann, 50 M.J. 689 (A.F. Ct. Crim. App. 1999) (order to “cease and refrain from any and all contact of any nature” with enlisted member with whom the accused allegedly fraternized, which indicated that accused’s counsel had unrestricted access, was lawful); United States v. Button, 31 M.J. 897 (A.F.C.M.R. 1990) (order not to go to family quarters, where alleged sexual abuse victim lived, was lawful), aff’d, 34 M.J. 139 (C.M.A. 1992); United States v. Hawkins, 30 M.J. 682 (A.F.C.M.R. 1990) (order to have no contact with alleged victims and witness, unless by the area defense counsel, was lawful); United States v. Wine, 28 M.J. 688 (A.F.C.M.R. 1989) (order to disassociate from neighbor’s estranged wife lawful); United States v. Moore, 58 M.J. 466 (C.A.A.F. 2003) (order “not to converse with the civilian workers” in the galley was lawful and not over broad when given after the accused violated a policy limiting interaction between civilian employees and servicemembers). 5.Alcohol. a)Regulations establishing a minimum drinking age for service personnel in a command abroad are legal. United States v. Manos, 37 C.M.R. 274 (C.M.A. 1967). b)A military member may also be lawfully ordered not to consume alcoholic beverages as a condition of pretrial restriction, if reasonably necessary to protect the morale, welfare, and safety of the unit or the accused; to protect victims or potential witnesses; or to ensure the accused’s presence at the court-martial or pretrial hearings in a sober condition. United States v. Blye, 37 M.J. 92 (C.M.A. 1993). c)Order not to consume alcohol must have a reasonable connection to military needs; United States v. Stewart, 33 M.J. 519 (A.F.C.M.R. 1991) (order not to consume alcoholic beverages to see if the accused was an alcoholic was invalid); United States v. Kochan, 27 M.J. 574 (N.M.C.M.R. 1988) (order not to drink alcohol until 21-years old was illegal). 6.Loans. Orders restricting loans between service members may be lawful, if there is a sufficient connection between the military’s duty to protect the morale, discipline, and usefulness of its members. United States v. McClain, 10 M.J. 271 (C.M.A. 1981) (upholding conviction for violation of a regulation prohibiting loans between permanent party personnel and trainees at Fort Jackson); United States v. Smith, 1 M.J. 156 (C.M.A. 1975) (regulation prohibiting all loans for profit or any benefit without consent of commander, without a corresponding military need, was invalid as too restrictive); United States v. Giordano, 35 C.M.R. 135 (C.M.A. 1964) (order fixing a maximum legal rate of interest on loans among military members was lawful). 7.Writing checks. United States v. James, 52 M.J. 709 (Army Ct. Crim. App. 2000) (order “not to write any more checks” was lawful). Contra United States v. Alexander, 26 M.J. 796 (A.F.C.M.R. 1988) (order “not to write any checks” was much too broad to be considered valid). 8.Regulations may proscribe the use of customs-free privileges in Korea for personal gain or profit. United States v. Lehman, 5 M.J. 740 (A.F.C.M.R. 1978). 9.As long as not unreasonable and not unduly humiliating or degrading, an order to produce a urine specimen under direct observation is lawful. Unger v. Ziemniak, 27 M.J. 349 (C.M.A. 1989)C - 34concerned with this investigation except in line of duty” was so broad in nature and all-inclusive in scope that it was illegal); United States v. Mann, 50 M.J. 689 (A.F. Ct. Crim. App. 1999) (order to “cease and refrain from any and all contact of any nature” with enlisted member with whom the accused allegedly fraternized, which indicated that accused’s counsel had unrestricted access, was lawful); United States v. Button, 31 M.J. 897 (A.F.C.M.R. 1990) (order not to go to family quarters, where alleged sexual abuse victim lived, was lawful), aff’d, 34 M.J. 139 (C.M.A. 1992); United States v. Hawkins, 30 M.J. 682 (A.F.C.M.R. 1990) (order to have no contact with alleged victims and witness, unless by the area defense counsel, was lawful); United States v. Wine, 28 M.J. 688 (A.F.C.M.R. 1989) (order to disassociate from neighbor’s estranged wife lawful); United States v. Moore, 58 M.J. 466 (C.A.A.F. 2003) (order “not to converse with the civilian workers” in the galley was lawful and not over broad when given after the accused violated a policy limiting interaction between civilian employees and servicemembers). 5.Alcohol. a)Regulations establishing a minimum drinking age for service personnel in a command abroad are legal. United States v. Manos, 37 C.M.R. 274 (C.M.A. 1967). b)A military member may also be lawfully ordered not to consume alcoholic beverages as a condition of pretrial restriction, if reasonably necessary to protect the morale, welfare, and safety of the unit or the accused; to protect victims or potential witnesses; or to ensure the accused’s presence at the court-martial or pretrial hearings in a sober condition. United States v. Blye, 37 M.J. 92 (C.M.A. 1993). c)Order not to consume alcohol must have a reasonable connection to military needs; United States v. Stewart, 33 M.J. 519 (A.F.C.M.R. 1991) (order not to consume alcoholic beverages to see if the accused was an alcoholic was invalid); United States v. Kochan, 27 M.J. 574 (N.M.C.M.R. 1988) (order not to drink alcohol until 21-years old was illegal). 6.Loans. Orders restricting loans between service members may be lawful, if there is a sufficient connection between the military’s duty to protect the morale, discipline, and usefulness of its members. United States v. McClain, 10 M.J. 271 (C.M.A. 1981) (upholding conviction for violation of a regulation prohibiting loans between permanent party personnel and trainees at Fort Jackson); United States v. Smith, 1 M.J. 156 (C.M.A. 1975) (regulation prohibiting all loans for profit or any benefit without consent of commander, without a corresponding military need, was invalid as too restrictive); United States v. Giordano, 35 C.M.R. 135 (C.M.A. 1964) (order fixing a maximum legal rate of interest on loans among military members was lawful). 7.Writing checks. United States v. James, 52 M.J. 709 (Army Ct. Crim. App. 2000) (order “not to write any more checks” was lawful). Contra United States v. Alexander, 26 M.J. 796 (A.F.C.M.R. 1988) (order “not to write any checks” was much too broad to be considered valid). 8.Regulations may proscribe the use of customs-free privileges in Korea for personal gain or profit. United States v. Lehman, 5 M.J. 740 (A.F.C.M.R. 1978). 9.As long as not unreasonable and not unduly humiliating or degrading, an order to produce a urine specimen under direct observation is lawful. Unger v. Ziemniak, 27 M.J. 349 (C.M.A. 1989)

These are some of the factors were examine when questioning the reliability of an allegations. 

1. Logical structure and internal consistency. Whether the sequence of events makes sense. Whether the statement contains contradictions. 
2. Spontaneous production - (if the narrative is overly organized it could suggestive of a false statement).
3. Quantity of details or lack of details. 
4. Descriptions of interactions with other individuals. Whether those interactions are corroborated.
5. Reproduction of conversation. Whether those conversations are corroborated.
6. Whether complainant recounts any unexpected complications. 
7. Whether the narrative contains any descriptions of events that are of peripheral interest. 
8. Whether the statement includes any unusual or superfluous details. 
9. Whether there are any accounts of mental states - including the accused.
10. Description of sensory perceptions. 
11. Whether any descriptions of intoxicated behavior are consistent with the amount of alcohol consumed.
12. Any narrative corroborating motives to fabricate.
13. Spontaneous corrections. 
14. Admitting lack of memory.
15. Raising self-doubt about their own testimony.
16. Self-depreciation.
17. Language pardoning the accused. 
18. Admissions against interest.

We frequently get calls about the consequences of going absence without leave. The outcomes can run the spectrum depending on:

1) the length of the absence,
2) the reasons for the absence, and
3) whether you voluntarily returned to control.

There are other factors as well.  Below is a chapter from our book on AWOL to help you understand the elements of the offense, possible punishments, defenses, and consequences. Because every case is unique, we recommend a free initial consultation.


§ 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

1. That a certain authority appointed a certain time and place of duty for the accused;
2. That the accused knew of that time and place;
3. That the accused, without authority, failed to go to the appointed place of duty at the time prescribed.

 
Going from appointed place of duty

1. That a certain authority appointed a certain time and place of duty for the accused;
2. That the accused knew of that time and place; and,
3. 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

1. 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;
2. That the absence was without authority from anyone competent to give him or her leave; and,
3. That the absence was for a certain period of time.

 
and, if the absence was terminated by apprehension, add the element

1. That the accused’s absence was terminated by apprehension.

 
Abandoning watch or guard

1. That the accused was a member of a guard, watch, or duty;
2. That the accused absented himself or herself from his or her guard, watch, or duty section;
3. 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]

1. 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.

1. 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;
2. That the absence of the accused was without authority;
3. That the absence was for a certain period of time; 
4. That the accused knew that the absence would occur during a part of a period of maneuvers or field exercises; and,
5. 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:

1. The accused presents himself to competent military authority with the intention of returning to military duty.
2. The accused properly identifies himself or herself and discloses his or her status as an absentee.
3. The military authority, with knowledge of the accused’s status, exercises military control over the accused.[14]

            An involuntary return to military control typically occurs upon apprehension by either military or civilian authorities. 

  There are generally three ways that the military can involuntarily terminate an absence:

1. By exercising control over the accused by military authorities with knowledge of the accused’s status as an absentee.
2. Through a duty to inquire into the accused’s status as an absentee.
3. 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). ​

From our book on military crimes and defenses. Chapter 22: Article 107, UCMJ False official statement§ 22:1
Elements

§ 22:2
Discussion

§ 22:3
Standard Instructions

§ 22:4
Maximum Punishments

§ 22:5
Lesser Included Offenses
                                                                  

§ 22:1 – Elements

1. That the accused signed a certain official document or made a certain official statement;
   
   
2. That the document or statement was false in certain particulars;

 

1. That the accused knew it to be false at the time of signing it or making it; and, 
   
   
2. That the false document or statement was made with the intent to deceive. 

 
§ 22:2 – Discussion
False official statement is one of the most commonly alleged offenses in the manual for courts-martial.  It includes all statement and documents made in the line of duty.  It does not require material gain.  Though, material gain can be circumstantial evidence of intent to deceive.  Defense counsel will usually contest the suggestion that the accused knew the statement to be false. 
 
Whether a statement is official or not, depends on whether an official government function will be negatively impacted by the false or misleading statement.  There should be a clear and direct relationship to official duties.[1] This includes statements to civilian authorities.[2]  Intent to deceive means to purposely mislead, to cheat, to trick another, or to cause another to believe as true that which is false.  
 
A misleading statement can include an otherwise true statement that omits information.  In Wright, the accused suggested that he noticed computers were missing while moving property for storage.  The accused knew the actual location of the computers.  His guilty plea was provident.[3]  False statements can also be made voluntarily.  There is no exculpatory no doctrine in the military.[4]
            
 
§ 22:3 - Standard Instructions
Standard Instructions
DA Pamphlet 27-9
3-33-1. False official statement
 
§ 22:4- Maximum Punishment
 
The maximum punishment is dishonorable discharge, forfeiture of all pay and allowances, and confinement for five years. 

§ 22:5 – Lesser Included Offenses
 
The lesser-included offenses includes only Article 80 – attempts.
 
[1] United States v. Teffeau, 58 M.J. 62 (C.A.A.F. 2003)

[2] United States v. Day, 66 M.J. 172 (C.A..A.F. 2008)

[3] United States v. Wright, 65 M.J. 373 (C.A.A.F. 2007)

[4] United States v. Nelson, 53 M.J. 319 (C.A.A.F. 2000)

The retention criteria in DAFI 36-3211, paragraph 7.4.3.2.2 should always be discussed in Air Force drug and separation cases.  They include:

1. Whether the conduct is clearly a departure from his/her customary performance. 
2. The positive urinalysis was without knowledge of the contraband nature.
3. There has been no recurrence. 
4. Whether there is a desire to continue using drugs.
5. The use is not likely to recur.
6. There was no drug distribution.
7. It is absolutely in the Air Force’s best interest to retain the Airman.

If you are facing a military investigation involving a covered offense, it is critical to request a free initial consultation. We've attached the Army and Navy OSTC manuals and standard operating procedures.  Contact us now for a free consultation. 

Covered offenses include:
• Article 117a (intimate visual images); 
• Article 118 (murder); 
• Article 119 (manslaughter); 
• Article 119a (death or injury of an unborn child); 
• Article 120 (rape and sexual assault); 
• Article 120a (mail, deposit of obscene matter); 
• Article 120b (sexual assault of a child); 
• Article 120c (miscellaneous sex offenses); 
• Article 125 (kidnapping); 
• Article 128b (domestic violence); 
• Article 130 (stalking); 
• Article 132 (retaliation); 
• Article 134 (child pornography); and 
• Article 134 (sexual harassment, effective 1 January 2025).