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Article 86 of the Uniform Code of Military Justice makes it a criminal offense for a servicemember to be absent from a place of duty without proper authority. The article covers several forms of unauthorized absence, ranging from missing a specific formation or duty period to leaving an assigned unit entirely. The provision applies regardless of whether the absence is brief or extended, as long as it is without permission.
The statute criminalizes failure to report for duty, unauthorized departure from a place of duty, or remaining absent from one’s unit or organization. It also covers leaving a watch or guard post without relief and absence with intent to remain away permanently. Each subtype of violation carries distinct elements but shares the core requirement of absence without authority.
Article 86 applies solely to persons subject to the UCMJ, including active-duty servicemembers, activated reservists, and certain others under military jurisdiction. The government must establish the member’s duty status at the time of the alleged absence. Civilian personnel are not chargeable under this article unless otherwise brought under UCMJ authority.
The offense generally requires proof that the accused knew of the duty and knowingly failed to appear or remained absent without authority. Intent to remain away permanently is required only for the specific aggravated form of absence described in the statute. Negligence alone is insufficient, but mistakes of fact concerning orders or authorization may be relevant to mens rea.
Attempt and conspiracy may apply when a servicemember takes substantial steps to commit unauthorized absence or agrees with others to do so. Aiding or abetting liability is recognized when a person subject to the UCMJ intentionally assists another’s unauthorized absence. These applications are less common than direct AWOL charges but remain legally available under general UCMJ principles.
The government must prove every element of an Article 86 violation beyond a reasonable doubt. These elements define the specific factual findings necessary to establish that a service member was absent without authority from a required military duty, formation, or place of assignment.
The mens rea for Article 86 generally requires that the absence be voluntary and intentional. The prosecution must show that the service member knowingly failed to report or knowingly remained away, rather than being absent due to accident or circumstances beyond their control.
The actus reus consists of the prohibited conduct: failing to go to an appointed place of duty, going from that place without authority, or remaining absent from the unit, organization, or duty station. Each variant constitutes a distinct form of AWOL under Article 86.
Critical statutory terms include “without authority,” meaning without official approval from a competent military authority, and “appointed place of duty,” which encompasses formations, scheduled duty locations, and any place a superior has lawfully ordered a service member to be.
Punishment under Article 86, UCMJ (Absence Without Leave), depends on the date of the alleged offense. Offenses committed before December 27, 2023 are governed by the traditional maximum_punishment model in the Manual for Courts_Martial (MCM). Offenses committed on or after December 27, 2023 fall under the sentencing_category system established by the Military Justice Act of 2016 and implemented in the 2024 MCM.
The pre_December 27, 2023 framework authorizes different maximum punishments depending on the nature and duration of the unauthorized absence:
No mandatory minimum sentences apply. A dishonorable discharge is authorized, but not required, when the maximum punishment includes a punitive discharge.
Under the post_December 27, 2023 system, Article 86 offenses are assigned to sentencing categories listed in Appendix 12A of the 2024 MCM. For AWOL exceeding 30 days, the offense is placed in Sentencing Category C.
Under the sentencing_category model, the adjudged confinement must fall within the prescribed range for the assigned category. This differs from the prior framework, which provided a single maximum punishment for each offense and allowed the court_martial broad discretion up to that ceiling. The category system standardizes confinement ranges and provides greater uniformity across offenses.
Charging decisions under Article 86 generally reflect the specific circumstances of the absence, the service member’s duty status, and how the situation came to the attention of command. Investigators and commanders rely on concrete fact patterns, documentation, and witness accounts, and charges are shaped by the command’s assessment of the disruption to operations and the member’s level of responsibility.
Most Article 86 charges stem from straightforward duty_status violations observed in day_to_day unit operations. Common scenarios include:
Article 86 cases typically begin with routine accountability checks, duty rosters, or reports from supervisors noting a member’s absence. Commands often conduct preliminary fact-finding, such as reviewing leave forms, sign-in logs, duty records, or communications. When the absence becomes extended, crosses jurisdictional boundaries, or raises concerns about potential related offenses, military law-enforcement agencies—CID, NCIS, OSI, or CGIS—may initiate involvement. Their role usually includes confirming duty status, interviewing witnesses, and verifying timelines rather than conducting complex forensic investigations.
Prosecutors frequently use overlapping Article 86 specifications to address different segments or types of absence. Charge-stacking can occur when a single period of unauthorized absence includes multiple discrete failures to report or transitions between duty statuses. Alternative theories may appear in the charge sheet when the facts suggest multiple plausible interpretations of the absence, such as distinguishing between unauthorized departure and failure to return. These patterns reflect an effort to capture the full scope of the conduct within established legal frameworks.
Prosecutions under UCMJ Article 86 often turn on whether the government has adequately established each statutory element, supported by credible witnesses and reliable evidence. Courts routinely examine the interaction between factual circumstances and the structure of the offense, including disputes about evidentiary rulings and the interpretation of statutory terms within the UCMJ framework.
Litigation commonly focuses on whether the government has met its burden of proving the essential elements: the accused’s duty status, the nature of the absence, the duration of the absence, and whether the absence was unauthorized. Challenges may arise over documentation establishing duty rosters, orders, or reporting requirements. Disputes may also concern whether the accused’s location or actions during the alleged period of absence actually constituted a failure to go to the appointed place of duty or a departure from a place they were required to remain. In some cases, conflicting or incomplete administrative records generate disputes about what duties were assigned and whether proper notice was provided.
Although Article 86 is largely a strict-liability offense as to the fact of absence, intent or knowledge can become relevant when distinguishing among the various forms of unauthorized absence or when assessing whether the accused knowingly failed to appear. Contested issues may include whether the accused understood the obligation to be at a specific place and time, or whether circumstances created confusion regarding duty requirements. Courts occasionally analyze whether conduct was the result of mistake, misunderstanding, or negligence, particularly when determining the degree of culpability for different specifications within Article 86.
Credibility assessments often play a significant role, especially when duty status or the circumstances of the alleged absence rely heavily on witness testimony. Supervisors, administrative personnel, and fellow service members may provide differing accounts of reporting instructions, leave requests, or unit procedures. Discrepancies in recollection, documentation, or communications may affect how fact-finders evaluate the reliability of the underlying narrative.
Common evidentiary issues include the admissibility of statements made by the accused during command inquiries, the authentication of digital logs tracking check-ins or communications, and the reliability of documentary evidence such as leave forms or duty rosters. Suppression questions may arise concerning whether statements were obtained in compliance with Article 31(b) warnings or whether searches of digital devices were conducted within lawful authority. Disputes may also involve the chain of custody for electronic or paper records supporting the timeline of the alleged absence.
Courts occasionally confront questions about the meaning of terms such as “appointed place of duty,” “without authority,” or “remain absent.” Ambiguities may emerge when interpreting how Article 86 interacts with service regulations, orders, or administrative instructions. Cross-referenced provisions within the UCMJ or implementing rules may also require clarification, especially when determining the classification of conduct under the article’s various subsections.
Understanding how desertion charges relate to extended or aggravated absences
Connection between AWOL and missing movement offenses during required operations
Failure to obey orders that commonly accompany unauthorized absence cases
Leaving or abandoning a post as a related duty-status violation
Collateral consequences are administrative, professional, or legal effects that may arise independently of any sentence imposed at court-martial. These consequences may come from military regulations, federal or state law, or external agencies and can influence a service member’s career, benefits, and post-service opportunities.
A conviction for Article 86 Absence Without Leave can prompt administrative actions separate from judicial punishment. These may include:
An AWOL conviction may raise concerns about reliability, trustworthiness, and judgment, which are central to security clearance determinations. This may result in suspension, revocation, or denial of clearance eligibility, affecting access to classified information and positions requiring it. Post-service employment in fields that depend on clearance eligibility, such as federal contracting, can also be impacted.
Convictions under Article 86 do not ordinarily trigger sex offender registration or similar reporting obligations. Registration requirements are governed by federal and state law and generally apply only to specific categories of offenses.
In most cases, AWOL itself does not create separate civilian criminal liability. However, associated conduct, such as fraud, desertion involving property loss, or violations committed while absent, may expose a service member to federal or state prosecution or civil claims.
For non-citizens, a military conviction may affect certain immigration processes. Although Article 86 is not typically a deportable offense, prolonged unauthorized absence or a resulting adverse discharge may influence admissibility assessments or naturalization reviews.
During an investigation for UCMJ Article 86, decisions made in the initial stages often influence how the case develops long before any charges are preferred. Early legal guidance helps ensure that a service member understands the processes that shape the evidentiary record and subsequent command decisions.
Military investigations typically begin collecting evidence immediately after an alleged absence is reported. Statements, attendance records, duty logs, and digital data are gathered quickly. Early legal involvement can help ensure that evidence is preserved accurately, that the context of a service member’s actions is documented, and that any statements provided are made with a full understanding of their implications.
Interviews conducted by command representatives or law-enforcement personnel may occur before a service member fully grasps the allegations or the scope of the inquiry. Without guidance, a service member may give incomplete or imprecise statements, waive rights unintentionally, or agree to interviews that introduce avoidable complications.
Commands may initiate administrative inquiries or preliminary fact-finding independent of criminal proceedings. Decisions made during these processes—often before legal advice is obtained—may influence later determinations, including whether the matter escalates to nonjudicial punishment or a court-martial. Consultation with qualified counsel, including civilian military defense lawyers, can clarify how these processes interact.
Choices made early in an investigation, such as providing statements, consenting to searches, or responding to administrative questions, can shape the narrative used in later proceedings. These actions may affect both evidentiary assessments and command perceptions, influencing outcomes across administrative and judicial forums.
Gonzalez & Waddington is a civilian military defense law firm that represents service members worldwide in cases arising under the Uniform Code of Military Justice. The firm focuses on defending clients in military criminal matters, administrative actions, and adverse proceedings, providing experienced guidance to those facing complex legal challenges within the military justice system.
If you are facing an AWOL allegation or related military action, Gonzalez & Waddington can provide informed legal guidance based on significant experience with UCMJ matters. To discuss your situation and obtain a consultation, you are invited to contact the firm for more information about the services available.
Q: What does UCMJ Article 86: Absence Without Leave (AWOL) cover?
A: Article 86 addresses situations in which a service member fails to be present at the time and place they are required to be for duty. This includes leaving a place of duty without authorization, failing to report on time, or remaining absent beyond an approved period. The article applies regardless of whether the absence was intentional or the result of neglect, and the length and circumstances of the absence can affect the severity of potential consequences.
Q: What is the maximum punishment for UCMJ Article 86: Absence Without Leave (AWOL)?
A: The maximum punishment depends on the nature and duration of the absence. Short, unauthorized absences can result in relatively limited penalties, while extended or aggravated absences may lead to confinement, forfeiture of pay, reduction in rank, or a punitive discharge. The precise maximums vary based on the charged subsection of Article 86, the service member’s duty status, and whether the absence involved specific aggravating factors.
Q: Can an allegation under Article 86 lead to administrative separation even without a conviction?
A: Yes. Commanders may initiate administrative separation based on substantiated misconduct, including AWOL allegations, even if the matter does not proceed to court-martial or end in a conviction. Administrative separation boards evaluate the underlying conduct, the service member’s overall record, and the impact on unit readiness. The resulting characterization of service may depend on the evidence presented and the board’s findings rather than the outcome of any criminal proceeding.
Q: Do I need a civilian military defense lawyer for an investigation under this article?
A: Service members are entitled to military counsel at no cost during criminal investigations and court-martial proceedings. Some choose to hire civilian defense counsel for additional support, particularly when the case involves contested facts, complex timelines, or potential career consequences. Whether to retain civilian counsel depends on personal preference, the seriousness of the allegation, and the need for independent legal advice throughout the investigative or administrative process.
Q: Can an Article 86 allegation be handled without a court-martial, such as through administrative action or nonjudicial punishment?
A: Yes. Many AWOL cases are addressed through nonjudicial punishment or administrative measures rather than court-martial. Commanders may consider the length of the absence, surrounding circumstances, and the service member’s performance history when deciding on the appropriate forum. Administrative actions may include counseling, reprimands, or separation proceedings. Nonjudicial punishment allows commanders to impose corrective measures without initiating criminal trial procedures.
Q: What types of evidence are commonly reviewed in an AWOL investigation?
A: Investigators typically examine duty rosters, sign-in logs, witness statements, electronic access records, communication logs, and any instructions issued regarding reporting requirements. They may also review factors such as transportation issues, medical conditions, or administrative errors that could explain an absence. The goal is to determine whether the service member had a valid authorization or reasonable justification for not being present at the designated place and time.
Q: Which agencies typically investigate suspected AWOL cases?
A: AWOL allegations may be reviewed initially by a unit’s chain of command, but more prolonged or serious absences can involve investigative agencies such as Military Police, Security Forces, or Naval Criminal Investigative Service personnel, depending on the branch. These agencies verify the circumstances of the absence, document relevant timelines, and coordinate with commanders regarding the service member’s return to military control and the next steps in the administrative or disciplinary process.
You can review the individual Articles of the UCMJ and learn more about military law by clicking here: UCMJ Articles and Military Justice Resources. You can also explore official military law guidance from the Army Judge Advocate General’s Corps at jagcnet.army.mil.
A renowned military criminal defense attorney and best-selling author, Michael Waddington defends clients worldwide in serious cases and trains lawyers in advanced cross-examination. He is frequently featured by major media outlets like CNN and 60 Minutes.
Alexandra González-Waddington is a top military and civilian defense attorney who has handled high-profile sexual assault, violent crime, and war-crimes cases globally. Her work is widely recognized by media outlets including 60 Minutes and ABC’s Nightline.
