Email to a friend

Ask The Lawyer: Is AWOL and Breaking Restriction the Same?

By Mathew Tully

Q. Is it possible for a service member to be convicted of being absent without leave and breaking restriction over a single incident, or are they the same?

A. The Uniform Code of Military Justice protects service members from facing charges for an offense and its lesser included offense. In short, a service member cannot be convicted of the same crime twice.

At first glance, it would seem as though charges of absence without leave, an Article 86 violation, and breaking restriction, an Article 134 violation, would fall within this category. Even though both offenses involve a service member being somewhere he or she is not supposed to be, courts have found they do not always trigger double jeopardy concerns.

For example, in the 2004 case of U.S. vs. Hudson, a Coast Guard firefighter was restricted to base after his lieutenant colonel learned he missed several rehabilitation treatment meetings for an addiction to a painkiller. After the lieutenant colonel requested the firefighter take a urinalysis, the firefighter stole a military vehicle and drove off base. A day later he was apprehended by civilian law enforcement.

The U.S. Court of Appeals for the Armed Forces ruled the charges against the firefighterAWOL and breaking restrictionwere not factually the same. What set them apart was the fact that the AWOL offense had a “temporal component.”

For the AWOL charge, but not the breaking restriction charge, it mattered that the firefighter was away for two days without authorization. The breaking restriction charge hinged on the fact that the firefighter was restricted to “some” place.


Attorney Locator

Find an attorney near you.
Click below.

Contact Us

  • Tully Rinckey announces new hires and promotion

    Derrick T. Hogan was promoted to senior associate, overseeing the criminal defense practice in Albany. Hogan joined as a law clerk in 2009. Morgan Smith joined as recruitment manager. Smith has more than 14 years of staffing and recruitment experience and previously …

  • Albany Police Officer Arrested

    Officer Caught on Camera Slamming 15-Year old Girl Albany Police Chief Brendan Cox says on July 26th, Officer Ervis Miftari was called to St. Anne Institute, a rehabilitation center for troubled girls, to help with one of the residents, who …

Read All

  • Free Download: EEOC 2016 Update White Paper

    You Could Be Sharing Confidential Info and Not Even Know It Tully Rinckey’s white paper details the Equal Employment Opportunity’s (“EEOC”) nationwide change to procedure that has gone largely unnoticed. The new procedure applies to Charges filed on or after …

Read All

Read All

  • Tully Rinckey PLLC Binghamton Office Ribbon Cutting

    You’re Invited: Tully Rinckey PLLC Binghamton Office Ribbon Cutting Tully Rinckey PLLC, an upstate-wide coast-to-coast 70 attorney full-service law firm, is holding a ribbon cutting for its new office space at 4100 Vestal Road, Suite 104, Vestal, NY 13850 on …

Read All