Defending Service Members Facing Charges of Unauthorized Absence and Desertion Under the UCMJ
An unauthorized absence from military duty — whether brief or extended — can have serious consequences that go far beyond what many service members anticipate when they leave. What begins as a personal crisis, a mental health emergency, a family hardship, or simply a failure to return from leave on time can quickly escalate into formal UCMJ charges that carry significant penalties, punitive discharges, and long-term consequences for veterans’ benefits and civilian life.
At Corrao & Robles Law, attorney Nelson Robles represents service members facing AWOL and desertion charges throughout the East Coast and in applicable federal matters. As a Judge Advocate General (JAG) officer, he understands both the legal framework governing these offenses and the human circumstances that frequently give rise to them — and he works to ensure that every client receives a defense that accounts for the full picture of their situation.
Understanding AWOL and Desertion Under the UCMJ
Absence-related offenses under the Uniform Code of Military Justice range in severity from brief unauthorized absences to formal desertion charges, and the distinctions between them matter significantly when it comes to potential penalties and available defenses.
Absence Without Leave (AWOL)
Absence Without Leave, charged under Article 86 of the UCMJ, occurs when a service member fails to appear at their appointed place of duty at the prescribed time without proper authorization. AWOL can be charged regardless of the duration of the absence, and even a brief unauthorized absence can result in formal charges depending on the circumstances and the command’s response.
Desertion
Desertion is a more serious offense charged under Article 85 of the UCMJ and requires proof of additional elements beyond mere absence. To establish desertion, the government must prove that the service member absented themselves without authority and did so with the intent to remain away permanently, with the intent to avoid hazardous duty, or with the intent to shirk important service. The distinction between AWOL and desertion is significant — desertion carries substantially harsher potential penalties and, in times of war, can theoretically carry the most severe consequences the military justice system allows.
Common Circumstances That Lead to AWOL
Service members go AWOL for a wide range of reasons, and understanding those circumstances is essential to building an effective defense and mitigation strategy. Common contributing factors include:
These circumstances do not eliminate legal responsibility, but they are directly relevant to how charges are resolved, what punishment is imposed, and what discharge characterization a service member ultimately receives.
Returning to Military Control
One of the most immediate questions facing a service member who has been AWOL is how and when to return to military control. The manner of return — whether voluntary surrender, apprehension by military or civilian law enforcement, or return through a specific program — can significantly affect how the command responds and what options remain available.
Voluntary surrender, particularly when accompanied by legal counsel, often results in more favorable treatment than apprehension. Some commands are receptive to administrative rather than criminal resolution of absence cases, particularly when the underlying circumstances involve documented mental health issues or family hardships. Understanding the likely command response and the options available before returning is an important reason to involve legal counsel as early as possible in the process.
How AWOL and Desertion Cases Are Resolved
Not every AWOL case results in a court-martial. Depending on the duration of the absence, the circumstances surrounding it, the service member’s prior record, and the command’s approach, these cases can be resolved through a range of mechanisms.
Administrative Separation
Many AWOL cases, particularly those involving extended absences or service members with limited time remaining in their enlistment, are resolved through administrative separation rather than court-martial. The characterization of that separation — honorable, general under honorable conditions, or other than honorable — can have lasting consequences for veterans’ benefits and civilian opportunities, making effective advocacy during the separation process critically important.
Non-Judicial Punishment Under Article 15
For shorter absences or first-time offenders with otherwise clean records, commands sometimes resolve AWOL cases through Article 15 non-judicial punishment rather than referring charges to a court-martial. While this avoids the most severe potential consequences, an Article 15 still carries real penalties and a formal record, and the decision of whether to accept NJP or demand trial by court-martial deserves careful legal analysis.
Court-Martial
More serious cases — particularly those involving extended absences, desertion charges, or AWOL in connection with other UCMJ violations — may be referred to a special or general court-martial. At court-martial, the government must prove every element of the charged offense beyond a reasonable doubt, and the full range of defenses available under military law applies.
Defenses and Mitigation in AWOL Cases
Lack of Intent to Remain Away Permanently
In desertion cases, the government must prove specific intent to remain away permanently or to avoid hazardous duty. Establishing that a service member intended to return, was deterred from returning by fear or mental health crisis, or lacked the requisite intent for the more serious desertion charge can be central to the defense.
Mental Health and Competency
Mental health conditions that affect a service member’s judgment, decision-making, or ability to comply with military obligations are directly relevant both as a defense and as powerful mitigation evidence. Properly documenting these conditions and presenting them effectively before a court-martial panel or commanding officer can significantly influence the outcome of a case.
Constructive Enlistment Issues
In some cases, questions about the validity of a service member’s enlistment or reenlistment contract, improper stop-loss extensions, or other enlistment irregularities may be relevant to the defense.
When to Speak With a Military Defense Attorney
Contact an attorney as soon as possible if any of the following apply:
Work With Corrao & Robles Law
AWOL and desertion cases involve legal consequences, but they almost always involve deeply human circumstances as well. Attorney Nelson Robles approaches every case with an understanding of both dimensions, working to protect each client’s legal rights while ensuring that the full context of their situation is presented as effectively as possible.
Corrao & Robles Law represents service members facing AWOL and desertion charges throughout the East Coast and in applicable federal matters, and is prepared to discuss your situation in a confidential consultation.