Expert: Rod Powers - 3/7/2006

Question
My son went AWOL from the Army right after basic training, about 4 or 5 months ago.  He now regrets his actions, and really wants to go back and be a soldier.  Would he face a manditory discharge?  Should he just show up at the nearest Army fort or should he call somewhere (maybe a lawyer) first?  What consequences should he expect?

Answer
Hi Jan,

First of all, your son has committed a crime, and a pretty major crime, at that.  He needs to understand that.

There are two possible offenses --  The first is Desertion, under Article 85 of the Uniform Code of Military Justice (UCMJ).  See:  http://usmilitary.about.com/od/punitivearticles/a/mcm85.htm

The second possible offense is AWOL, under Article 86.  See:  http://usmilitary.about.com/od/punitivearticles/a/mcm86.htm

The primary difference between the two offenses is "intent to return."  In short, if the member went absent with no intent to return to military control, they are guilty of the offense of Desertion, and can be punished under such conditions.  If they absented themselves with an ultimate intent to return to military control, they are guilty of the lesser offense of AWOL.

If a member is absent for longer than 30 days, then the military is allowed to assume they had not intent to return.  Therefore, the "burden of proof" about intent to return, shifts from the government, to the accused.

When a member has been AWOL for 30 days or more, then their name is entered into the National Criminal Data Base computer system.  In other words, if he is ever stopped by a Cop, for anything, they'll run his name through the system, it will come up that he is "wanted" by the military.  He would then be arrested, and held by the civilian police, until the military can come and take control, and ship him to a military base.

If he turns himself in, he cannot be charged with Desertion.  Turning himself in shows that he is willing to return to "military control," and therefore, only subjects him to the lesser charge of AWOL.

Now, what will happen after that?  No one can say for sure.  First of all, after being AWOL for 4 or 5 months, the chances of him being allowed to remain in the military are small.  After that, the decision is up to the commanding officer.  Just as (in civilian life) how to handle or prosecute a case is pretty much up to the DA (District Attorney), in the military, such decisions are left up to the commanding officer.

You want a guess?  I can "guess," but it may not be accurate.  I would guess, as a minimum, an "other other than honorable" administrative discharge.  But, that's just a guess.  The decision would be up to the CO.  

My advice would be to have an attorney arrange his return to "military control," as an attorney may be able to arrange the best possible resolutation.  However, his chances of remaining in the military to "be a soldier" are extremely small.

For more information about the United States Military, feel free to visit my military information website at:  http://usmilitary.about.com

Hope this helps!

Rod Powers
http://usmilitary.about.com