Defending Against Article 86 UCMJ Charges: Legal Strategies and Advice

Facing charges under Article 86 of the Uniform Code of Military Justice (UCMJ), which pertains to Absence Without Leave (AWOL), is a serious matter with potentially severe consequences for military personnel. Whether you are accused of being absent for a short period or desertion, understanding your rights and employing effective legal strategies is crucial to mounting a robust defense.

Understanding Article 86 UCMJ

Article 86 defines Absence Without Leave (AWOL) as the failure of a service member to go to their appointed place of duty at the prescribed time. There are different degrees of AWOL:

Short-Term AWOL: Typically involves absences of less than 3 days.

Long-Term AWOL: Absences exceeding 3 days without authorization.

Desertion: Absence with the intent to abandon the duty or service permanently.

Each offense carries varying degrees of severity and corresponding consequences, ranging from administrative actions to criminal prosecution through court-martial.

Legal Defenses and Strategies

When facing Article 86 UCMJ charges, several legal defenses and strategies can be employed to defend against the allegations:

Lack of Intent:

One of the primary defenses against AWOL charges is to prove that the absence was not intentional. This may involve demonstrating that the service member had a legitimate reason for the absence, such as a misunderstanding of orders or circumstances beyond their control.

Authorization:

If the absence was due to authorized leave or permission granted by a superior officer, it can serve as a strong defense. Documentation and evidence of the authorization are crucial in proving this defense.

Emergency Circumstances:

Demonstrating that the absence was due to unforeseen emergency circumstances beyond the service member’s control can mitigate the charges. This defense requires providing evidence of the emergency and its impact on the ability to report for duty.

Improper Procedure or Orders:

Challenging the legality or clarity of the orders that led to the alleged AWOL can be a valid defense. If the orders were ambiguous, contradictory, or improperly communicated, it may weaken the prosecution’s case.



Character and Service Record:

Presenting evidence of a service member's exemplary military record, dedication, and previous compliance with orders can help demonstrate that the absence was out of character or an isolated incident.

Building a Strong Defense

To build a strong defense against Article 86 UCMJ charges, it is essential to take the following steps:

Seek Legal Representation Early: Consult with a military defense attorney experienced in handling UCMJ cases as soon as possible. They can provide guidance, assess the strength of the case against you, and formulate an effective defense strategy.

Gather Evidence: Collect all relevant evidence, including documentation of orders, communications with superiors, witness statements, and any other records that support your defense.

Prepare for Legal Proceedings: Understand the military justice process and prepare thoroughly for any administrative hearings or court-martial proceedings. Your attorney can help you navigate these procedures and advocate on your behalf.

Cooperate with Authorities: Maintain open communication with your legal counsel and cooperate fully with military authorities during the investigation and legal proceedings.

Potential Outcomes and Mitigation

The potential outcomes of defending against Article 86 UCMJ charges vary based on the circumstances of the case, the strength of the defense presented, and mitigating factors. Possible outcomes may include:

Acquittal: Successfully proving innocence or insufficient evidence may result in acquittal, clearing the service member of all charges.

Reduction in Charges: Negotiating with prosecutors or presenting a compelling defense may lead to reduced charges or a lighter punishment.

Administrative Actions: In some cases, administrative actions such as reprimand, reduction in rank, or extra duty may be imposed instead of or in addition to more severe penalties.

Court-Martial Conviction: If convicted through court-martial, penalties can range from confinement, dishonorable discharge, forfeiture of pay and allowances, and loss of benefits.

Defending against Article 86 UCMJ charges requires thorough preparation, legal expertise, and a proactive approach. By understanding the legal defenses available, gathering compelling evidence, and working closely with experienced legal counsel, service members can effectively defend their rights against Article 86 UCMJ and mitigate the potential impact on their military careers. It is crucial to act promptly, maintain professionalism throughout the process, and pursue every available avenue to achieve the best possible outcome in a challenging legal situation under the UCMJ.

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