A service member who misses formation, fails to report, or remains away from a unit without authorization may face an absence without leave charge under Article 86 of the Uniform Code of Military Justice. As the absence continues, concern often shifts to a more serious question: Can the command accuse the service member of desertion?
AWOL does not automatically become desertion after 30 days or any other fixed period. The central difference is intent. An extended absence can increase the potential punishment and support an inference that the service member intended to remain away permanently, although its length alone does not establish desertion.
How Is AWOL Different From Desertion?
Article 86 covers several forms of unauthorized absence, including failing to report to an appointed place of duty, leaving that place without authority, and remaining away from a unit without permission.
Desertion under Article 85 requires proof of additional intent. The government generally must show that the service member intended to remain away permanently. Article 85 also covers absences intended to avoid hazardous duty or shirk important service.
Because intent is rarely established by one fact, investigators and prosecutors may consider the length of the absence along with the service member’s statements, travel, communications, possessions, employment, financial activity, and efforts to conceal their location. Selling military property, assuming a false identity, or saying that the service member never intended to return could support a desertion allegation.
Other evidence may point away from an intent to desert. Messages discussing plans to return, efforts to contact the command, unresolved leave requests, medical treatment, a family emergency, or confusion about orders may help explain the absence or undermine the allegation that the service member intended to remain away permanently.
Do Not Create Additional Evidence
A service member facing an unauthorized absence should be careful about texts, emails, social media posts, and conversations with coworkers. Attempts to explain the situation casually can be misunderstood or taken out of context. Deleting messages or changing records can create additional problems and may eliminate information that supports the defense.
The safer approach is to preserve communications, orders, duty schedules, leave requests, travel records, and medical documents. A clear timeline should identify when the absence began, what caused it, who was contacted, what responses were received, and whether the service member intended to return.
The service member should also avoid making false statements to the command or investigators. Statements about intent can become central evidence in distinguishing an Article 86 absence from Article 85 desertion.
Returning Requires a Plan
Remaining absent usually makes the situation harder to resolve. At the same time, returning without legal guidance may lead to questioning, restriction, apprehension, or possible pretrial confinement before the service member fully understands the allegations.
Military defense counsel can help coordinate a voluntary return or surrender, identify the appropriate command contact, and prepare the service member for what may happen next. How the absence ends can matter because military law distinguishes between a voluntary return and an absence terminated by apprehension.
Seeking legal advice does not guarantee that charges will be avoided, but it can help prevent unnecessary admissions and preserve facts showing why the absence occurred and what the service member intended.
What Evidence Can Support the Defense?
The most useful evidence depends on the circumstances, but it may include:
- Approved or requested leave documents
- Texts or emails with supervisors
- Medical or mental health records
- Evidence of a family crisis
- Transportation problems or travel records
- Attempts to contact the unit
- Personal belongings left at the duty station
- Communications showing plans to return
These facts may affect whether charges are filed, whether the conduct is addressed through nonjudicial punishment or court-martial, and how the command evaluates the service member’s intent.
Speak With a Military Defense Attorney Early
An AWOL investigation can affect a service member’s freedom, rank, pay, benefits, security clearance, and military career. The decisions made before returning to the command or answering questions can shape the entire case.
Attorney Nelson Robles is a former active-duty Army JAG officer who represents service members facing Article 15 proceedings, courts-martial, and other UCMJ actions. Contact Corrao & Robles Law for a confidential consultation about an unauthorized absence or desertion allegation.
