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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.


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