Failure to Report for Duty in the Military

Failing to report for duty can carry serious consequences in the military, in fact desertion during armed conflict can carry the ultimate punishment. It is highly important that if you are a member of the armed forces and you are required to be somewhere designated by the military that you do so. If you do not, these unauthorized absences may lead to hefty fines, confinement, or dishonorable discharge.

There are three kinds of unauthorizes absences: desertion, AWOL, and missing a movement.

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DESERTION

If someone is in an unauthorized absence status from the military for more than 30 days, that person will automatically be declared a deserter. Then, a federal warrant will be issued for the servicemember’s arrest and no matter where the servicemember may be, if he or she is stopped by local law enforcement for any reason, it will result in the person’s immediate arrest until that deserter can be returned to their branch. He or she will likely be confined before the trial at a brig until the court-martial takes place.

UCMJ Article 85: Desertion

1. A member of the armed forces is guilty of desertion when—
  - Without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently;
  - Quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or
  - Without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another one of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States;
2. Any commissioned officer of the armed forces who, after tender of his resignation and before notice of its acceptance, quits his post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion;
3. Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment, other than death, as a court-martial may direct.

Desertion is similar to AWOL in that it involves a military service member’s failure to report for duty, or the act of leaving one’s assigned post. Desertion typically involves the intent to leave one’s unit or place of duty permanently, but an offender who is AWOL for 30 days automatically is considered to have deserted his or her post. For desertion, it does not need proof of intent, but is still nearly always intentional.

TYPES OF DESERTION

Desertion with Intent to Remain Away Permanently

“Intent to remain away permanently” can usually be shown by the actions of the accused. Although a finding of intent to remain away permanently generally focuses on the actions of the accused, a finding “of hazardous duty” and “important service” focuses on the actions of the unit. For example, while a unit’s deployment to a combat zone is generally considered hazardous duty and important duty, the duty that includes drill, training, and maneuvers are not generally considered hazardous duty or important service.

The elements for UCMJ Article 85 Desertion with Intent to Remain Away Permanently follow:

The accused left his or her unit, organization, or place of duty;
The absence was without authority;
At some time during the absence, the accused intended to remain away from his or her unit, organization, or place of duty; and
The accused remained absent until the date alleged; or was apprehended.

Other types of desertion include:

Desertion with Intent to Avoid Hazardous Duty or Important Service

A member of the military can still be convicted of “desertion” even if the unit did not actually depart to engage in “hazardous duty” or “important service.” Additionally, the accused’s moral or ethical concern about the appropriateness of the duty or service is not a defense.

The accused quit his or her unit, organization, or place of duty;
Did so with the intent to avoid a certain duty or service;
The duty or service to be performed was hazardous or particularly important;
The accused knew the duty or service was required; and
Remained absent until the date alleged.

Desertion Before Notice of Acceptance of Resignation

It is important not to jump the gun on the resignation of a servicemember. It is worth it to wait and see whether the resignation will be accepted because if he or she simply deserts, they will face the consequences of that desertion. If the member waits until the resignation is approved, they may resign without further consequences.

The accused was a commissioned officer and had tendered his or her resignation;
Before receiving notice of acceptance of resignation, the accused quit his or her duties;
Did so with the intent to remain away permanently; and
Remained absent until the date alleged; or was apprehended.

Punishment

Attempted desertion also is charged as a military crime, if the attempt went beyond simple preparation. Desertion carries a maximum punishment of dishonorable discharge, forfeiture of all pay, and confinement of five years. For desertion during a time of war, however, the death penalty may be applied at the discretion of the court-martial.

AWOL: ABSENCE WITHOUT LEAVE

UCMJ Article 86: AWOL

Any member of the armed forces who, without authority—

fails to go to his appointed place of duty at the time prescribed;
goes from that place; or
absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed.
shall be punished as a court-martial may direct.

A member of the armed forces is considered AWOL if he or she fails to go to an appointed place, leaves that place, or is otherwise absent from his or her unit or appointed place of duty. For example, a service member ordered to guard a weapons cache would be charged with absence without leave if he left his post two hours early without permission.

A member of the armed forces may be AWOL in the following situations:

Failure to go to Appointed Place of Duty

The elements for a failure to go to the appointed place of duty are:

The accused was appointed to a certain time and place of duty;
Knew of the time and place; and
Without authority, failed to go the appointed place of duty at the prescribed time.

Failing to go to where the service member is assigned at the assigned time is a crime under Article 86 and violations are subject to punishments. The punishment for this is confinement for one month, reduction to the lowest enlisted grade, and forfeiture of two-thirds pay per month for one month.

Going from Appointed Place of Duty

Similar to going to an appointed place of duty, going form an appointed place of duty means:

The accused was appointed to a certain and place of duty;
Knew of the time and place; and
Without authority, left the appointed place after reporting for duty.

The punishment for failure to go from an appointed place of duty is confinement for one month, reduction to the lowest enlisted grade, and forfeiture of two-thirds pay per month for one month.

Absence from Unit, Organization, or Place of Duty

The accused excused himself or herself from a place of duty, unit, or organization;
The absence was without authority; and
The absence was for a certain period of time or was terminated by apprehension.

When a service member goes AWOL, the punishments differ based on the circumstances of the absence. If the member is in absence from the unit, organization, or another place of duty for:

not more than three days: the punishment is confinement for one month, reduction to the lowest enlisted grade, and forfeiture of two-thirds pay per month for one month.
more than three days but not more than 30 days: the punishment is confinement for six months, reduction to the lowest enlisted grade, and forfeiture of two-thirds pay per month for six months.
more than 30 days: the punishment is a dishonorable discharge, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and confinement for one year.
more than 30 days and the AWOL is terminated by apprehension: dishonorable discharge, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and confinement for 18 months.

Absence from Unit, Organization, or Place of Duty with Intent to Avoid Maneuvers or Field Exercised

The accused excused himself or herself from a place of duty, unit, or organization;
The absence was without authority; and
The absence was for a certain period of time or was terminated by apprehension.
The accused knew the absence would occur during maneuvers or field exercises; and
Intended to avoid all or part of the maneuvers or field exercises.

If the member goes AWOL with the intent to avoid field exercises or maneuvers, the punishments include bad-conduct discharge, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and confinement for six months.

Abandoning Watch or Guard

The accused was a member of a guard, watch, or duty;
Absented himself or herself from this guard, watch, or duty;
The absence was without authority; and
The accused intended to abandon his or her post.

If the member is on guard or watch duty and then leaves the post without authorization, but doesn’t intend to abandon the post, the punishment is only confinement for three months, reduction to the lowest enlisted grade, and forfeiture of two-thirds pay per month for three months.

If the member is on guard or watch duty and then leaves the post without authorization, with the intent to abandon the post, the punishment is bad-conduct discharge, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and confinement for six months.

Punishment

Punishment depends on the severity of the offense and the discretion of the commanding officer, but often includes forfeiture of pay and confinement. For instance, being AWOL for less than three days can result in a maximum penalty of confinement for one month and forfeiture of two-thirds pay for one month. After 30 days or more, service members face dishonorable discharge, forfeiture of all pay and allowances, and a one-year confinement.

When AWOL Becomes Desertion

Desertion is the most serious of the absentee offenses. The primary difference between AWOL and desertion is the intent to remain away from the military permanently. The punishments vary based on length and intent.

If a member deserted but voluntarily returned to military control: dishonorable discharge, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and confinement for two years.
If the member deserted and the desertion was terminated by apprehension: dishonorable discharge, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and confinement for three years.
If the member deserted with the intent to avoid hazardous duty or to shirk important service (an example of this would be a member ordered to deploy to Iraq and then deserts to avoid the deployment): dishonorable discharge, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and confinement for five years.
If the member deserts during time of war: death or such other punishment (such as life in prison) as a court-martial may direct.

MISSING MOVEMENT

UCMJ Article 87: Missing Movement

The article governing missing movement states that “any person subject to this chapter who, through neglect or design, misses the movement of a ship, aircraft, or unit with which the person is required in the course of duty to move shall be punished as a court-martial may direct.”

Th elements of a Missing Movement charge are as follows:

The accused was required to move with a ship, aircraft, or unit;
Knew of the prospective movement of the ship, aircraft, or unit;
Missed the movement of the ship, aircraft, or unit; and
Missed the movement through design (intent) or neglect.

Neglectfully or intentionally missing one’s ship, aircraft, or unit may result in a missing movement charge, which is a serious offense. However, intentionally missing movement is worse, and can result in a dishonorable discharge and two-year confinement.

A military member may not be found guilty if her missing movement is due to situations beyond her control. For instance, a military pilot who had every intention of boarding his aircraft but was struck by a drunk driver would not be charged with missing movement.

The difference between “Desertion” under Article 85 and “Missing a Movement” under Article 87 is that Missing a Movement does not require “intent to remain away permanently.” Missing a Movement requires that the servicemember either deliberately or through neglect miss a military movement involving a particular ship, aircraft or unit. Additionally, Missing a Movement conviction requires that the movement actually occurred. The servicemembers physical inability to make the movement is a defense to the charge of Missing a Movement.

Consider contacting a military lawyer if you have been charged with desertion or another offense related to the failure to report for duty.

Voluntarily Returning to Military Control

What most servicemembers do not realize is that if their Unauthorized Absence or Desertion status is terminated by apprehension, the servicemember is looking at a more serious sentence if found guilty of the Unauthorized Absence or Desertion charge. Therefore, it is always recommended that a servicemember voluntarily return to their unit or reporting to the nearest military installation or local law enforcement agency. Choosing to do so is always the best option.

Because there are many factors and issues related to the determination of whether a servicemember in Unauthorized absence or deserter status returned “voluntarily” or “involuntarily” to military control, it is important to immediately consult with an experienced civilian military law attorney who understands the issues and can help you navigate through them.

Contact – Cannon & Associates: Military Law Advocates

Experience matters when you are defending a desertion, AWOL, or Missing a Movement in a military justice action. It is important to know the Oklahoma lawyer you hire is dedicated to your cause and versed in all aspects of military law. Cannon & Associates is dedicated to Fierce Advocacy and will fight for your rights. Being arrested for failing to report for duty offense in the military is serious and can lead to tough consequences, but Cannon & Associates is here to support and guide you through all of your options, from beginning to end. We are dedicated to helping you resolve your dispute in the most advantageous setting and are ready to help you get the relief you need.

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Founder John Cannon is a Judge Advocate in the National Guard and Senior Associate Doug Elliott is a retired Brigadier General. Contact Cannon & Associates to protect your rights and fight for your case in Oklahoma. Complete the CONTACT FORM ON THIS PAGE NOW or CALL at 405-657-2323 for a free confidential case evaluation.

By nbbc_admin

October 20, 2020