Expert: Rod Powers - 11/27/2007

Question
Hi Rod, my best friend went AWOL during basis training. I think he left within the first 4 weeks. He is scared, he does not know what is going to happen. What do you think will happen to him if he turns himself in? I wanna help, so please tell me what I can to help him.

Answer
Hi Nick,

It's impossible to say for sure. There is no "this will happen" list when it comes to Military offenses under the Uniform Code of Military Justice.

Here's what I can tell you: In civilian life, how "hard" a crime is prosecuted is pretty much up to the District Attorney. In the Military, that role is accomplished by the member's commanding officer. For any given offense, the commanding officer will receive advice from the JAG (military lawyers), and then decide how to handle a particular offense.

I'll give you the bad news first.......

There are two possible offenses here. The first is Absent Without Leave (AWOL), which is a violation of Article 86 of the UCMJ, and the second is Desertion under Article 85 of the UCMJ.

The primary difference between the two offenses is "intent to remain away from the military permanently."

Once someone has been absent for more than 30 days, the Military administratively classfies them as a "deserter."

Now, the crime of "desertion" is a whole lot more serious than the crime of "AWOL."

If someone has been absent for less than 30 days, then it up to the government to prove (beyond a reasonable doubt) that they intended to remain away forever, in order to justify a conviction of "Desertion."

However, if one has been absent for more than 30 days, the court will "assume" he/she intended to remain away forever, and -- unless the accused can convince the court overwise -- they can be easily convicted for the offense of "Desertion."

My very strong advice is for your friend to turn him/herself in. If they do so, that removes the possibility of "desertion," because willingly returning to "military control" means he/she didn't intend to stay away forever, and removes the possibility of prosecution for desertion.

However, if he/she has been absent for more than 30 days, there is already a Federal warrant issued for his/her arrest, and if any police officer pulls him/her over, he/she will be arrested, and will not be able to "prove" that he/she intended to return to the military, thereby justifying a charge of "desertion."

As the United States Military is currently engaged in Armed Conflict, if convicted by a General Court Martial for "Desertion," your friend could be sentenced to death (although that's *extremely* unlikely) (See: http://usmilitary.about.com/od/punitivearticles/a/mcm85.htm)

If, on the other hand, he turns himself in, the worst he could be charged with is AWOL (if one turns oneself in, that's "proof" they didn't intend to remain away permanently). For the maximum court-martial punishments for AWOL, see: http://usmilitary.about.com/library/milinfo/mcm/bl86.htm)

Okay, the above is the absolute worst-case scenario. Chances are very good that he won't be court-martialed for going AWOL from basic training (he should breath a "sigh of relief here").

Again, what will actually happen is up to his commanding officer, but -- in my experience, it would probably be an Article 15 (see: http://usmilitary.about.com/od/justicelawlegislation/a/article15.htm), followed immediately by administrative discharge processing (see: http://usmilitary.about.com/od/justicelawlegislation/l/aadischarge1.htm), with an "Other Than Honorable" discharge characterization.

My best advice is that he contact the Area Defense Counsel (Military Defense Lawyer) at his basic training base, before he turns himself in. It's possible that the ADC can contact the convenining authority and "work a deal" for him before he reports back in.

For more information about the United States Military, feel free to visit my U.S. Military Information Site at: http://usmilitary.about.com

Hope this helps!

Rod Powers
http://usmilitary.about.com