Absence Without Leave. Article 86(3)

Absence Without Leave. Article 86(3)

Library of Congress: Military Law

Absence Without Leave. Article 86(3)

  1. militarydefenselawyers409Elements. MCM, pt. IV, 10.a.(3).

    Absence Without Leave. Article 86(3)

    1. The accused absented himself from his unit, organization or place of duty at which he was required to be;
    2. The absence was without proper authority from anyone competent to give him leave; and
    3. The absence was for a certain period of time.
  2. Several aggravated forms of AWOL permit increased punishment. MCM, pt. IV, 10.e.(3)-(5). Note that two of these aggravated offenses contain an intent element. For the elements and a discussion of these aggravated forms of AWOL, see MCM, pt. IV, paragraphs 10.b.(3), (4) and 10.c.(4). Unless otherwise indicated, the discussion of AWOL in this section refers to the standard, non-aggravated form of AW
  3. Definition of Terms.
    1. “Unit” refers to a military element such as a company or battery.
    2. “Organization” refers to a larger command consisting of two or more units. One can be AWOL from an armed force as a whole. United States v. Vidal , 45 M.R. 540 (A.C.M.R. 1972); see United States v. Brown , 24 C.M.R. 585(A.F.B.R. 1957) (holding the United States Air Force was both an organization and a place of duty).
    3. “Place of duty at which the accused was required to be” is a generic term designed to broadly cover places such as a command, quarters, station, base, camp or post. United States v. Brown , 24 C.M.R. 585 (A.F.B.R. 1957). Note that this definition is different from “a place of duty” under Article 86(1) and 86(2), which refers to a specific “appointed place of duty.”
    4. An individual may be absent from more than one unit. United States v. Mitchell , 22 C.M.R. 28 (C.M.A. 1956); United States v. Green , 14 M.J. 766 (A.C.M.R. 1982).
  4. A specification alleging the wrong unit requires dismissal. United States v. Walls , 1M.J. 734 (A.F.C.M.R. 1975); United States v. Riley , 1 M.J. 639 (C.G.C.M.R. 1975); United States v. Holmes , 43 C.M.R. 446 (A.C.M.R. 1970) (holding that dismissal for fatal variance does not preclude retrial for unauthorized absence from correct unit).
  5. An Article 86(3) specification must allege the accused was absent from his unit,organization, or other place of duty at which he was required to be. Failure to allege that the accused was required to be there is fatal. United States v. Kohlman , 21 C.M.R. 793 (A.F.C.M.R. 1956). Absence from a unit cannot be supported when the member is in fact present in the unit, albeit casually. United States v. Wargo , 11 M.J. 501 (N.C.M.R. 1981). But see United States v. Phillips , 28 M.J. 599 (N.M.C.M.R 1989) (affirming conviction of accused who remained on the installation but in another unit’s barracks). See also United States v. Cary , 57 M.J. 655 (N-M. Ct. Crim. App. 2002) (accused was allowed to leave local area and live with cousin, conditioned upon the requirement he call his unit daily to report status; accused’s failure was not an unauthorized absence, but rather a failure to perform a particular task).
  6. The specification must allege that the absence was “without authority.” Failure to do so may be a fatal defect. United States v. Fout , 13 C.M.R. 121 (C.M.A. 1953), overruled in part by United States v. Watkins , 21 M.J. 208 (C.M.A. 1986) (omission not fatal when first challenged on appeal, accused pled guilty, another AWOL specification to which the accused pled guilty contained the phrase “without authority,” and no prejudice evident).
  7. Mere failure to follow unit checkout procedure by accused who was granted leavedoes not constitute AWOL. United States v. Dukes , 30 M.J. 793 (N.M.C.M.R. 1990).
  8. A definitive inception date is indispensable to a successful prosecution forunauthorized absence. United States v. Hardeman , 59 M.J. 389 (C.A.A.F. 2004).
  9. Computing the Duration of the Absence. MCM, pt. IV, ¶ 10.c.(9).
    1. An unauthorized absence is complete the moment the accused leaves the unit without authority. It is not a continuing offense. See United States v. Jackson , 20 M.J. 83 (C.M.A. 1985); United States v. Lynch , 47 C.M.R. 498 (C.M.A. 1973); United States v. Newton , 11 M.J. 580 (N.C.M.R. 1980) (accused’s plea improvident when he admitted his absence actually began before the date alleged in the specification which constituted an admission to an uncharged offense). But see United States v. Brock , 13 M.J. 766 (A.F.C.M.R. 1982) (plea to “13 October” absence not improvident as it was embraced by “on or about” 14 October specification). Leave is considered an absence from duty, and one in an AWOL status cannot take leave. United States v. Kimbrell , 28 M.J. 542 (A.F.C.M.R. 1989); United States v. Ringer , 14 M.J. 979 (N.M.C.M.R. 1982).
    2. The duration of an absence must be proved in order to determine the legal punishment for the offense. United States v. Lynch , 47 C.M.R. 498 (C.M.A. 1973); see also United States v. Simmons , 3 M.J. 398 (C.M.A. 1977).
    3. The duration of an absence alleged in a specification may be decreased but not enlarged by the court. United States v. Turner , 23 C.M.R. 674 (C.G.B.R. 1957), rev’d on other grounds , 25 C.M.R. 386 (C.M.A. 1958); United States v. Scott , 59 M.J. 718 (Army Ct. Crim. App. 2004) (holding plea improvident for charged period when accused signed in with CQ and departed the next day; citing MCM pt. IV, 10c(11), the court divided the period of absence into two shorter absences under the same specification and affirmed the findings and sentence); An accused may be found guilty of two or more separate unauthorized absences under one specification, but the maximum punishment may not increase. MCM, pt. IV, 10c(11).
    4. If a member is released by the civilian authorities without trial, and was on authorized leave at the time of arrest or detention, the member may be found guilty of unauthorized absence only if it is proved that the member actually committed the offense for which detained, thus establishing that the absence was the result of the member’s own misconduct. MCM, pt. IV, ¶ 10.c.(5). But see United States v. Sprague , 25 M.J. 743 (A.C.M.R. 1987) (holding guilty plea provident where accused admitted his arrest on a warrant for contempt of court was his own fault, despite the fact that he was released without trial).
    5. If a service member is given authorization to attend civilian court proceedings, pursuant to UCMJ Article 14, and is put in civilian jail as a result, the ensuing absence is not unauthorized. United States v. Urban , 45 M.J. 528 (N-M. Ct. Crim. App. 1996).
  10. Termination of the Absence: Return to Military Control.
    1. Surrender to military authority. If an accused presents himself to military authorities and notifies them of his AWOL status, the surrender terminates the absence. MCM, pt. IV, ¶ 10.c.(10)(a).
      1. United States v. Coglin , 10 M.J. 670, 672 (A.C.M.R. 1981) lists three factors which must be found to constitute an effective voluntary termination: (a) “[T]he absentee must present himself to competent military authority with the intention of returning to military duty;” (b) “[T]he absentee must identify himself properly and must disclose his status as an absentee;” and (c) “[T]he military authority, with full knowledge of the individual’s status as an absentee, exercises control over him.”
      2. Casual presence. United States v. Rogers , 59 M.J. 584 (Army Ct. Crim. App. 2003) (affirming conviction when accused pled guilty and said she was “sometimes” on post during the charged periods, but admitted she had no intent to return and did not turn herself in to her unit; casual presence on post for personal reasons did not voluntarily terminate her absence). The opinion contains a pattern instruction for voluntary termination issues.
      3. Intent to return to duty. The soldier must voluntarily submit or offer to submit to military authorities with a bona fide intention to return to duty. United States v. Self , 35 C.M.R. 557 (A.B.R. 1965).
    2. Military Control.
      1. Where an accused thwarted an attempt to exercise control by refusing to submit to lawful orders, military control was not established. United States v. Pettersen , 14 M.J. 608 (A.F.C.M.R. 1982), aff’d 17 M.J. 69 (C.M.A. 1983).
      2. Telephone contact alone will not effect a return to military control. United States v. Anderson , 1 M.J. 688 (N.C.M.R. 1975); see also United States v. Sandell , 9 M.J. 798 (N.C.M.R. 1980) (rejecting claim of constructive termination where accused informed recruiter by telephone he wished to surrender, but before surrendering to a captain at the reserve center, accused became frightened and departed the center).
      3. Civilian bail/bond. United States v. Dubry , 12 M.J. 36 (C.M.A. 1981) (accused’s surrender to military authority was not complete because the terms of his civilian bail made him unavailable to return to unrestricted military control).
      4. Where the record reflects the accused 1) may have submitted himself to military authorities, and 2) military authorities failed to exercise control over the accused, a substantial basis in law and fact exists to question the providence of the accused’s plea of guilty to unauthorized absence (relative to the calculation of the termination date of the accused’s absence). United States v. Phillipe , 63 M.J. 307 (C.A.A.F. 2006); see also United States v. Pinero , 60 M.J. 31 (C.A.A.F. 2004) (AWOL soldier who returned to his unit to submit to a urinalysis that lasted five hours, and then went AWOL again, terminated his initial AWOL when he returned to submit to the urinalysis).
    3. Knowledge of absentee’s status.
      1. “[K]nown presence at a military installation will not constitute termination where the absentee, by design and misrepresentation, conceals his identity or duty status.” United States v. Self , 35 C.M.R. 557 (A.B.R. 1965).
      2. Casual presence at a military installation, unknown to proper authority and primarily for the absentee’s own purposes, does not end the unauthorized absence. United States v. Williams , 29 M.J. 504 (A.C.M.R. 1989) (if an absentee temporarily submits himself to military control but does not disclose his status as an absentee, the AWOL is not terminated); United States v. Self , 35 C.M.R. 557 (A.B.R. 1965); United States v. Murat Acemoglu , 45 C.M.R. 335 (C.M.A. 1972) (going to American embassy to find out information on how to surrender was not enough to terminate AWOL); United States v. Baughman , 8 M.J. 545 (C.G.C.M.R. 1979).
      3. Constructive knowledge of absentee’s status. An unauthorized absence may be terminated by the exercise of control over the absentee by military authorities having a duty to inquire into the absentee’s status, if they could have determined such status by reasonable diligence. United States v. Gudatis , 18 M.J. 816 (A.F.C.M.R. 1984). But see United States v. Jackson , 2 C.M.R. 96 (C.M.A. 1952) (After the accused went AWOL, he was tried by summary court-martial for other offenses in a different area of Korea. During World War II and the Korean Conflict, summary courts-martial were convened in areas where large troop concentrations existed, and courts often did not know the accused soldiers’ status. Thus, the AWOL did not terminate in this case, because the accused did not inform the summary court-martial of his status and went AWOL after the court-martial.)
    4. Apprehension of a known absentee by military authorities terminates an unauthorized absence.
      1. The authorities need not be of the same armed force as the accused. United States v. Coates , 10 C.M.R. 123 (C.M.A. 1953).
      2. But, record of trial must evince military authority’s knowledge of status and intent to exercise control. United States v. Gaston , 62 M.J. 404 (2006) (action by “dorm manager” informing the accused that his squadron was looking for him not enough to constitute termination by apprehension; dorm manager did not indicate why unit was looking for accused and once notified, accused voluntarily surrendered by going to the front of the dorm).
    5. Apprehension of a known absentee by civil authorities, acting at the request and on behalf of military authorities, terminates an unauthorized absence. United States v. Garner , 23 C.M.R. 42 (C.M.A. 1957); see also United States v. Hart , 47 M.R. 686 (A.C.M.R. 1973).
      1. Where a service member is apprehended by civilian authorities for a civilian offense, and the authorities indicate a willingness to turn the member over to military control, the failure or refusal of military officials to take control of the member constructively terminates the absence. United States v. Lanphear , 49 C.M.R. 742 (C.M.A. 1975). But see United States v. Bowman , 49 C.M.R. 406 (A.C.M.R. 1974) (holding that the Army has no affirmative duty to seek the release of a service member it knows is in civilian jail pending civilian charges).
      2. Defense counsel must determine all relevant facts concerning an accused’s apprehension by civilian authorities and return to military control to competently advise an accused before entering a guilty plea to an unauthorized absence terminated by apprehension. United States v. Evans , 35 M.J. 754, 757 n.1 (N.M.C.M.R. 1992).
    6. Delivery to military authority. If a known absentee is delivered by anyone to military authority, this terminates the absence. MCM, pt. IV, 10.c.(10)(c).
  11. For a discussion of trial defense counsel’s obligations concerning disclosure of documents, see United States v. Province , 45 M.J. 359 (C.A.A.F. 1997) (in which defense counsel, during pretrial negotiations, gave prosecutors a written pass given to the accused, thus allowing the government to sever one long AWOL charge into two AWOL charges; the court held defense counsel was not unethical or ineffective because counsel used the document to secure a favorable deal for his client and because the government could have obtained the document elsewhere).