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When does AWOL become Desertion?

Military Law

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One of the most basic rules in the military is to be at your appointed place of duty on time. While you can always be excused from appearing at your place of duty—whether it is a simple formation or your typical workstation—it is essential that you always receive approval from your chain of command before not showing up. In the situations where you do not show up, or in the scenarios where you simply leave, you must understand that you are opening yourself up to potential criminal charges and ramifications that will follow you into the civilian world.

Articles 85 and 86 of the UMCJ define the potential offenses you can be charged with if you have unauthorized absences. The penalties for these infractions are severe and can drastically impact your military career as well as your civilian life. The difference between the two offenses, and thus the punishment you can face, depends on the circumstances surrounding your intent.

The Difference Between Desertion and AWOL

Desertion, the far more serious offense, occurs when a service member is in an unlawful absent status from their unit and decides to remain away permanently, to avoid hazardous duties or to avoid essential service. The essential question under Article 85 is whether the accused meant to “intend to remain away therefrom permanently,” as opposed to Article 86, which places more emphasis on the duration of the AWOL status.

The definition of “intent to remain away therefrom permanently” depends on the facts of each individual case; however, your command will likely be the one interpreting your actions. They will likely conduct an investigation to determine what was going on in your life before you decided to not show up to work. They will likely interview witnesses, search your barracks room, and call your family. If there is evidence suggesting that you have no plans to return to your unit, then it is likely that they will accuse you of desertion.

It is also extremely important to know that your command will very likely inform federal authorities that you have deserted your unit. This gets input into federal law enforcement databases, and agencies like the U.S. Marshalls will work to find you and apprehend you. Whether or not you are apprehended, or you eventually decide to voluntarily turn yourself in or return to your unit, is a crucial factor for military commands when determining your punishment.

A service member listed as a deserter will eventually have to answer for the desertion. A service member who is captured—termination by apprehension—will almost always be charged with the much more serious charge of desertion because the prosecutor will easily be able to show that the service member intended to stay away. A service member who turns himself in—termination by surrender—will almost always be charged with the less serious offense of AWOL because it would be impossible for a prosecutor to prove that the service member who surrendered intended to stay away. An experienced military law attorney will normally be able to assist with negotiating the surrender and working out terms that might be more favorable to the service member, such as avoiding or limiting any type of restriction or confinement.

What Should You do if You’ve Been Accused of Going AWOL?

While it is important that you eventually turn yourself in or return to base, you need to understand what is likely going to happen and protect your interests moving forward. It is possible that you will be placed in temporary confinement while your command determines how they will handle the case. You will also be subject to drug testing, which may carry with it additional offenses. Your command can then refer your case to a court-martial or handle it administratively. The consequences depend significantly on your actions and the circumstances surrounding your actions.

If you or a loved one is being investigated for being AWOL or deserting, or if you are already in an unlawful absence status and considering reporting yourself, it is important that you seek our experienced legal counsel immediately. While it may seem daunting to return to the military, you don’t have to go it alone. Furthermore, the consequences of these offenses do not just affect your military career but can very likely have a negative impact on the rest of your civilian life. It is paramount that you give yourself every advantage you can to protect yourself.

Marc T. Napolitana, is a senior associate with Tully Rinckey PLLC, where he practices in support of clients needing representation in Military Law and National Security Law. Marc possesses years of experience representing military personnel, federal employees, aspiring military service members (i.e. ROTC students), and security clearance applicants in a variety of legal forums. He can be reached at (888) 529-4543 or info@tullylegal.com.

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