Common Defenses Against Article 86 UCMJ Charges: How to Protect Yourself

Article 86 of the Uniform Code of Military Justice (UCMJ) addresses the issue of Absence Without Leave (AWOL), which is a serious charge for military personnel. Being accused of AWOL can lead to significant legal and career repercussions, including potential confinement and a negative impact on your military record. However, there are several common defenses available that can help protect yourself and challenge these charges effectively. Understanding these defenses can make a crucial difference in the outcome of your case.

Understanding Article 86 UCMJ

Article 86 UCMJ criminalizes the unauthorized absence of a service member from their assigned duties or locations. To be convicted under Article 86 UCMJ, the prosecution must prove that the absence was willful and that the service member did not have permission or a valid reason for their absence.

The key elements that must be demonstrated include:

Unauthorized Absence:The absence must be without official leave or authorization.

Willfulness:The service member must have intentionally failed to comply with their orders.

Duration: The absence must be of a certain duration to qualify as a violation of Article 86.

Common Defenses Against Article 86 UCMJ Charges

Lack of Willfulness

One of the primary defenses against Article 86 charges is to argue that the absence was not willful. If you can demonstrate that your absence was due to unforeseen circumstances or an unavoidable situation, it can undermine the prosecution's claim that the absence was intentional. For example, medical emergencies, family crises, or other significant issues can provide a valid reason for your absence.

Unawareness of Duty Status

In some cases, service members might not be aware of their duty status or the specific details of their orders. If you can prove that you were not properly informed about your duty assignments or that there was a misunderstanding regarding your orders, it may serve as a defense. This could involve demonstrating that you did not receive proper notification of your duty status or that there was confusion about your orders.

Emergency Situations

Another defense is to establish that the absence was due to an emergency situation that made it impossible for you to return to duty. This includes situations like a family emergency, serious illness, or other urgent matters that required your immediate attention. Providing evidence, such as medical records or proof of the emergency, can support this defense.

Lack of Intent

Proving that there was no intent to disobey orders or regulations can also be an effective defense. If you can show that your absence was due to circumstances beyond your control rather than a deliberate choice to avoid duty, this can impact the prosecution's ability to prove willfulness. For instance, if you were unable to return to duty because of travel issues or other logistical problems, it may be argued that your absence was not a result of intentional disobedience.

Procedural Errors

Challenging the procedures followed in handling your case can also serve as a defense. This includes questioning whether the proper legal procedures were adhered to during the investigation or court-martial process. Errors such as improper notification, inadequate representation, or procedural mistakes can sometimes lead to the dismissal of charges or a reduction in penalties.

Preparing Your Defense

To effectively utilize these defenses, thorough preparation is essential. Here are some steps to help you prepare:

Gather Evidence: Collect all relevant documentation, including medical records, emergency notifications, and any correspondence related to your absence. This evidence will be crucial in supporting your defense.

Consult with Legal Counsel: Engage an experienced military defense attorney who can provide guidance and help develop a strategy based on the specifics of your case. A knowledgeable attorney can assist in identifying the best defense options and ensure that your rights are protected.

Document Your Case: Maintain detailed records of your absence, including any communications with superiors, orders received, and reasons for your absence. This documentation can be instrumental in building your defense.

Defending yourself against Article 86 UCMJ charges requires a comprehensive understanding of the available defenses and a strategic approach to presenting your case. By demonstrating a lack of willfulness, highlighting emergency situations, or challenging procedural errors, you can effectively challenge the prosecution’s claims and protect your rights. Working closely with a skilled military defense attorney and thoroughly preparing your case will increase your chances of a favorable outcome in your court-martial proceedings.