Understanding Article 86 of the UCMJ: Unauthorized Absence


Article 86 of the Uniform Code of Military Justice (UCMJ) is a crucial provision dealing with Unauthorized Absence (UA). Commonly referred to as “AWOL” (Absent Without Leave), this post outlines the legal consequences and procedures for service members who fail to report for duty or go absent without proper authorization. In this post, we will delve into Article 86, its implications, possible legal defenses, and the consequences of going UA.

Table of Contents:
What is Article 86 of the UCMJ?
Consequences of Violating Article 86
Procedures for Handling Article 86 Violations
Defenses Against Article 86 Charges

active adult air force angry for recruit going UA under Article 86

What is Article 86 of the UCMJ?

Article 86 of the UCMJ is a law that governs the behavior of military personnel. It applies to those who don’t report for duty, go AWOL, or leave their assigned place of duty without authorization. This article is essential to maintain discipline, order, and readiness within the military.

Unauthorized Absence Defined

Unauthorized Absence (UA), commonly known as AWOL, describes a service member’s unauthorized absence from their place of duty. This absence can be as short as a few hours or extend to several days. The military takes UA seriously, regardless if it is intentional or due to unforeseen circumstances.

Consequences of Violating Article 86

Violation of Article 86 is a significant offense within the military, and it can lead to severe consequences. These consequences aim to uphold good order and discipline and ensure military readiness. Here are some of the potential repercussions:

Administrative Action

For minor cases of UA, the command may choose administrative action, such as a negative counseling or written reprimand. If the command chooses to address the UA by offering an NJP , the service member may be subject to a loss of rank and pay, and placed on restriction. These actions are usually applied to first-time offenders or individuals with a relatively short absence.

Court-Martial for Article 86

In more serious cases of AWOL or UA, a service member may face a court-martial, which is a military trial. The individual may face penalties, including a dishonorable discharge, forfeiture of pay and allowances, and confinement in a military brig, if convicted. If a service member has gone UA before or remained in an AWOL status despite being ordered to return, some commands will put the person in the Brig prior to trial. When commanders decide to place a service member in the brig, there will be an initial review officer hearing within seven days per Rules for Courts-Martial 305. A military defense attorney can help protect a service members’ rights at this hearing.

Procedures for Handling Article 86 Violations

The military adheres to specific procedures when suspecting a service member of violating Article 86 to ensure due process and fairness. Here is an overview of these procedures:

Command Investigation

In many cases, a command investigation will be initiated to gather evidence related to the unauthorized absence. The investigation may include interviews with witnesses, reviews of duty rosters, and documentation of any prior disciplinary issues. The investigating officer allows the service member an opportunity to make a statement. However, it is highly recommended to speak with a military defense attorney prior to making an oral or written statement.

Article 31 Rights

During the investigation, service members have Article 31 rights, similar to Miranda rights in civilian law. These rights shield a service member from self-incrimination and ensure that they are informed of the nature of the accusations against them. As Article 31 rights are more protective than Miranda rights, service members should speak with a lawyer before waiving them.

Legal Representation

Service members have the right to legal representation during the command investigation, when receiving a negative counseling, and any subsequent special or general court-martial. The military will not typically detail a JAG to your case during the investigation. However, you have the legal right to hire a military defense attorney for guidance during the investigation. It is highly recommended that individuals facing Article 86 charges seek the advice of a military defense attorney to safeguard their rights. The costs of working with a military defense attorney early in the investigation may save your honorable service.

Court-Martial Proceedings

If the case proceeds to a court-martial, there are several types of courts-martial. They range from summary court-martial (for minor offenses) to general court-martial (for more serious violations). The accused service member has the right to a trial by a jury or judge alone at a GCM. However, with the updated changes to the Manual for Courts-Martial in 2019 and 2023, commanders have a more sneaky option: judge alone special court-martial (JASPCM). This is a forum without jury members where the maximum confinement is capped at six months. However, there are no punitive discharges available, such as a bad-conduct discharge.

When service members face a court-martial for going UA or being AWOL under Article 86, some service members negotiate for a separation in lieu of trial. This is an administrative negotiation tool military defense attorneys use to help clients avoid a federal conviction. Starbucks would typically terminate an employee who fails to show up for work. There is zero risk to go to jail for failing to show up to work at Starbucks. However, the military may choose to take your freedom away. A separation in lieu of trial is a helpful negotiation tool an experienced defense attorney can discuss with you.

Defenses Against Article 86 Charges

Facing an accusation of UA is a serious matter. But you can raise valid defenses in response to Article 86 charges. These defenses include:

Proper Authorization

If the service member can show proper authorization for their absence, they may have a defense against Article 86 charges. Some examples include leave, medical reasons, or other official orders. Sometimes, there is a lack of communication between units. Often, an allegation of being UA is due to someone forgetting to report the service member is actually on leave.

Mistaken Identity

In some cases, the accused may demonstrate that they were wrongly identified as having gone UA. This defense relies on establishing an alibi or presenting evidence they were present on duty during the alleged absence. Sometimes this evidence looks like a snapchat video at the formation. Other times, it’s a written affidavit from a peer who was present at work stating they saw you.

Lack of Intent

If the absence was not willful and the service member had a valid reason for not reporting for duty, such as a genuine misunderstanding or an emergency, they may argue that they did not have the intent to violate Article 86. For example, imagine getting into a car crash on your drive to work. Then an ambulance took you to the hospital. You may have a decent defense to suggest you lacked the intent of going UA.

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Article 86 of the UCMJ, which addresses Unauthorized Absence, is a critical provision for maintaining discipline and order within the military. Service members who go AWOL face a range of consequences, from administrative actions to court-martial proceedings. Understanding the procedures and potential defenses is essential for those accused of violating Article 86. It is crucial for military personnel to be aware of their rights and responsibilities to prevent unauthorized absences and their associated legal consequences. The military justice system is designed to ensure fairness and justice, uphold military discipline, and maintain readiness, with Article 86 serving as a cornerstone of military law.