What Should I Do if I’ve Been Accused of Going AWOL?

Military members cannot leave without permission. They can be charged with absence without leave, or “AWOL.”  Article 86 of the Uniform Code of Military Justice makes AWOL a punishable offense.

Being absent without leave is a lesser offense and different from a charge of desertion. However, the penalties for being AWOL can be severe. If you are accused of going AWOL, it is in your best interest to consult a military defense attorney as soon as possible.

What Constitutes Absence Without Leave?

You can be AWOL if you:

  • Fail to appear at your appointed place of duty at the time you were ordered to appear without permission or authority from a commanding officer.
  • You leave your appointed place of duty without permission or authority from a commanding officer.
  • You are absent or remain absent from your place of duty, unit, or organization without permission or authorization.

There are many reasons why a servicemember may go AWOL. The Army does not care how good of a reason you might have for leaving your post without authorization. Simply being late to your assigned duty could result in AWOL charges.

It is important to understand that you must gain prior approval and authorization before leaving your post or not showing up at your assigned time. If not, you could face a court-martial.

What Are the Elements of an AWOL Charge?

The elements that the government must prove for an unauthorized absence depend on the specific type of absence.

Three common AWOL charges and the legal elements the government must prove are:

Failure to Appear at Appointed Place of Duty

The government must prove that you were ordered by a certain authority to appear at a specific time and place for duty. It must prove that you knew of the time and place of your duty, but you failed to appear without authority to be absent.

Absent From Place of Duty, Unit, or Organization

The government must prove that you left your place of duty, unit, or organization, and the absence was not authorized by someone with authority. Here, your absence was for a specific time. Your absence was terminated when you were apprehended, if applicable.

Going From Appointed Place of Duty

The government must prove that an authority ordered you to appear at a specific time and place for duty. You knew of the time and place, and you appeared. However, you left the place of duty without obtaining authority to leave.

Are There Defenses to Being AWOL?

The facts and circumstances of your unauthorized leave can help you avoid the maximum penalties for being AWOL. However, you must argue these facts as part of your defense.

Your military criminal defense lawyer may raise the defense of actual knowledge. As described above, AWOL offenses require that the government prove that you were aware of when and where you were supposed to appear for duty. For example, if your paperwork contains errors or mistakes, you cannot be punished for following those instructions unless you are told otherwise.

If you have evidence showing that you were prevented from returning to base or returning to duty, that could be another defense to AWOL charges. For example, you were involved in a car accident and hospitalized on your way back to base. Your attorney could argue that you were not AWOL, but an extenuating circumstance prevented you from returning to base.

Penalties for AWOL Charges

You can argue that there were mitigating circumstances that resulted in being absent without leave. A military defense attorney can help you develop a defense strategy that could avoid a court-martial. However, you are likely to be punished if you are guilty of AWOL.

The punishment depends on the facts and circumstances surrounding your unauthorized leave. For example, if your unauthorized leave was intentional, your punishment may be severe. If you return as soon as possible, report immediately to your command, have a justifiable reason for leaving, and are remorseful, your attorney may be able to argue for a lenient sentence.

Potential punishments for being AWOL include:

  • Confinement from one month to 18 months
  • Forfeiting all or some of your allowances and pay
  • Dishonorable discharge

Do not attempt to represent yourself if you face AWOL charges or desertion charges. Talk with a military criminal defense lawyer as soon as possible. Your future in the military and outside of the military depends on the outcome of your case.

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