Ask the Lawyer: Desertion carries stiffer penalties than AWOL - Military Law, Military Law Advice, Ask a Lawyer - Navy Times

Ask the Lawyer: Desertion carries stiffer penalties than AWOL

Lawyer Mathew B. Tully answers your questions.

Q. What’s the difference between AWOL and desertion?

A. The military has been grappling with high absent-without-leave and desertion rates — including, unfortunately, among veterans of Iraq and/or Afghanistan who have been diagnosed with post-traumatic stress disorder. Without proper approvals, sickness, lack of transportation or other disabilities in most cases will not protect service members from a charge of either offense.

Intent is a key differentiator between AWOL and desertion. Under Article 86 of the Uniform Code of Military Justice, AWOL begins when a service member without proper authority fails to be where he is supposed to be at a given time.

Even slight deviations from orders can merit an AWOL charge because a violation is triggered the moment a service member does not show up at an assigned place at a specific time, or when he leaves that place without proper authorization.

An unauthorized absence usually ends when an AWOL service member either surrenders to or is apprehended by military or civilian authorities. Punishments range from one month of confinement and forfeiture of two-thirds pay for a month (for less than three days’ absence) to dishonorable discharge, forfeiture of all pay and 18 months of confinement for unauthorized absences exceeding 30 days. AWOL is commonly handled with a company-grade Article 15, and the punishment is extra duty.

Under Article 85 of the UCMJ, desertion violations similarly begin when a service member without authority leaves his unit, organization or place of duty.

What differentiates desertion from AWOL is the service member’s intent to permanently stay away from such obligations or to avoid hazardous or special duties. Punishments for desertion are far more severe and range from death in wartime to dishonorable discharge, forfeiture of all pay and allowances and three years of confinement when the deserter is apprehended.

The court-martial of Army Spc. Mark L. Wilkerson highlights the importance of intent in such cases. Not wanting to be deployed to Iraq for a second tour of duty, Wilkerson went into hiding for 18 months before surrendering to authorities at Fort Hood, Texas, in August 2006.

His desertion was planned. He moved out of his Colorado apartment, put his belongings in storage and changed cell phones, all without notifying his unit.

In February 2007, he pleaded guilty to desertion and willfully missing deployment. He was sentenced to seven months in jail, reduction to E-1 and a bad-conduct discharge.

Mathew B. Tully is an Iraq War veteran and founding partner of the law firm Tully Rinckey PLLC. Click here to email him. The information in this column is not intended as legal advice.