Expert: Rod Powers - 9/19/2006

Question
my bestfriend went UA from the Marines two and a half months ago. he said he was unsure if he could be a good Marine and if he could handle leaving his wife and his newborn son. he went UA right after bootcamp and now wants to go back. he very much wants to stay a Marine and go to Iraq.  i dont know waht to tell him.
WHAT WILL HAPPEN WHEN HE GO`s BACK?  

Answer
Hi Jim,

Once he was gone for over 30 days, a federal warrant was issued for his arrest. That means, if he is stopped and identified by any police officer, he will be arrested, and held for return to military control.

If that happens, it would be very, very bad.

There are two possible offenses under the Uniform Code of Military Justice (UCMJ) involved here. The first is AWOL (Absent Without Leave), and the second is Desertion.

See: http://usmilitary.about.com/od/punitivearticles/a/mcm86.htm and http://usmilitary.about.com/library/milinfo/mcm/bl85.htm

Desertion carries a much heavier punishment possibility than AWOL. The primary difference between the two offenses is "intent to return to the military." However, if one has been absent for more than 30 days, the prosecution is allowed to assume there was no intent to return.

In other words, because he's been AWOL for more than 30 days, if he's captured by law enforcement, the prosecution is going to argue that he intended to stay away permanently. To counteract this, he would have to show proof that he intended to return to the military (hard to do).

If court-martialed and convicted of desertion, under Article 15, as we are currently in a time of war, he could be sentanced to death (although that is unlikely).

If he turns himself in, on the other hand, the worst offense he would be facing is AWOL, as by turning himself in, he shows intent to return to military control.

Assuming the absolute worst-case scenario, in which he was court-martialed for AWOL, beyond 30 days, the maximum jail time would be one year.

What will actually happen, however, is completely up to his commanding officer. Just as (in civilian life), the District Attorney gets to decide how to prosecute a criminal case, in the military, the decision is made by the commanding officer.

Chances are he will not be allowed to continue to serve. It's possible, but unlikely. The most likely scenario is that he will be punished under Article 15 (see: http://usmilitary.about.com/od/justicelawlegislation/a/article15.htm), followed by an immediate administrative discharge, under Other-than-honorable condtions (see: http://usmilitary.about.com/od/justicelawlegislation/l/aadischarge1.htm).

Again, however, disposition would be up to his commanding officer.

Hope this helps!

Rod Powers
http://usmilitary.about.com