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Ask the Lawyer: Not reporting for duty can trigger AWOL, disobedience charges

Feb. 14, 2013 - 04:28PM   |   Last Updated: Feb. 14, 2013 - 04:28PM  |  
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Q. If a noncommissioned officer tells you to report for duty at a certain time and place and you don't do it, does that qualify as disobeying an NCO or just AWOL?

A. Under the circumstances you describe, upon return to duty, the government generally may charge a service member either with absence without leave in violation of Article 86 of the Uniform Code of Military Justice, or willful disobedience of a noncommissioned officer in violation of Article 91. Under some circumstances, the government may charge both.

An Article 86 offense is triggered when a service member, without legitimate authorization, fails to go to an appointed place of duty at a scheduled time. The key component is the failure to do what was ordered, not willfully disobeying a direct order.

In contrast, an Article 91 offense is triggered when the service member willfully disobeys a warrant, petty or noncommissioned officer.

The 1996 case U.S. v. Antonio Henderson illustrates the line between Articles 86 and 91. The case involved a Marine Corps private who was convicted at a general court-martial of, among other things, unauthorized absence and willful disobedience of a lawful order.

Both charges stemmed from an incident in which the private's platoon sergeant told him to get into uniform and report for a regularly scheduled formation later that morning.

Instead of reporting for duty, the private went AWOL until a noncommissioned officer apprehended him later that day.

Considering that the platoon sergeant gave the private these orders 45 minutes before formation and there was no immediate response required of him, the U.S. Court of Appeals for the Armed Forces found that the private's failure to report did not amount to "a serious, direct flouting of military authority."

Further, the court found the platoon sergeant's order was not "anything more than a reminder" to appear at formation and did not pertain to a very important duty. And there was no indication that the private openly defied the order. As such, the court found him to be AWOL, and set aside the Article 91.

Service members charged with AWOL or willful disobedience should immediately contact a military law attorney. Depending on the circumstances, a lawyer can show that a service member had no way of knowing he was required to appear at a certain time or place or that the alleged disobedience was not willful.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.

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