MCM on Article 86 Absence Without Leave

Article 86 -- Absence without leave 2005 MCM Article 86-10 a. Text. "Any member of the armed forces who, without authority -(1) fails to go to his appointed place of duty at the time prescribed; (2) goes from that place; or (3) absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed; shall be punished as a court-martial may direct." b. Elements. (1) Failure to go to appointed place of duty. (a) That a certain authority appointed a certain time and place of duty for the accused; (b) That the accused knew of that time and place; and (c) That the accused, without authority, failed to go to the appointed place of duty at the time prescribed. (2) Going from appointed place of duty. (a) That a certain authority appointed a certain time and place of duty for the accused; (b) That the accused knew of that time and place; and (c) That the accused, without authority, went from the appointed place of duty after having reported at such place. (3) Absence from unit, organization, or place of duty. (a) That the accused absented himself or herself from his or her unit, organization, or place of duty at which he or she was required to be; (b) That the absence was without authority from anyone competent to give him or her leave; and (c) That the absence was for a certain period of time. [Note: if the absence was terminated by apprehension, add the following element] (d) That the absence was terminated by apprehension. (4) Abandoning watch or guard. (a) That the accused was a member of a guard, watch, or duty; (b) That the accused absented himself or herself from his or her guard, watch, or duty section; (c) That absence of the accused was without authority; and [Note: If the absence was with intent to abandon the accused's guard, watch, or duty section, add the following element] (d) That the accused intended to abandon his or her guard, watch, or duty section. (5) Absence from unit, organization, or place of duty with intent to avoid maneuvers or field exercises. (a) That the accused absented himself or herself from his or her unit, organization, or place of duty at which he or she was required to be; (b) That the absence of the accused was without authority; (c) That the absence was for a certain period of time; (d) That the accused knew that the absence would occur during a part of a period of maneuvers or field exercises; and (e) That the accused intended to avoid all or part of a period of maneuvers or field exercises. c. Explanation. (1) In general. This article is designed to cover every case not elsewhere provided for in which any member of the armed forces is through the member's own fault not at the place where the member is required to be at a prescribed time. It is not necessary that the person be absent entirely from military jurisdiction and control. The first part of this article -- relating to the appointed place of duty -- applies whether the place is appointed as a rendezvous for several or for one only. (2) Actual knowledge. The offenses of failure to go to and going from appointed place of duty require proof that the accused actually knew of the appointed time and place of duty. The offense of absence from unit, organization, or place of duty with intent to avoid maneuvers or field exercises requires proof that the accused actually knew that the 2 absence would occur during a part of a period of maneuvers or field exercises. Actual knowledge may be proved by circumstantial evidence. (3) Intent. Specific intent is not an element of unauthorized absence. Specific intent is an element for certain aggravated unauthorized absences. (4) Aggravated forms of unauthorized absence. There are variations of unauthorized absence under Article 86(3) which are more serious because of aggravating circumstances such as duration of the absence, a special type of duty from which the accused absents himself or herself, and a particular specific intent which accompanies the absence. These circumstances are not essential elements of a violation of Article 86. They simply constitute special matters in aggravation. The following are aggravated unauthorized absences: (a) Unauthorized absence for more than 3 days (duration). (b) Unauthorized absence for more than 30 days (duration). (c) Unauthorized absence from a guard, watch, or duty (special type of duty). (d) Unauthorized absence from guard, watch, or duty section with the intent to abandon it (special type of duty and specific intent). (e) Unauthorized absence with the intent to avoid maneuvers or field exercises (special type of duty and specific intent). (5) Control by civilian authorities. A member of the armed forces turned over to the civilian authorities upon request under Article 14 (see R.C.M. 106) is not absent without leave while held by them under that delivery. When a member of the armed forces, being absent with leave, or absent without leave, is held, tried, and acquitted by civilian authorities, the member's status as absent with leave, or absent without leave, is not thereby changed, regardless how long held. The fact that a member of the armed forces is convicted by the civilian authorities, or adjudicated to be a juvenile offender, or the case is "diverted" out of the regular criminal process for a probationary period does not excuse any unauthorized absence, because the member's inability to return was the result of willful misconduct. If a member is released by the civilian authorities without trial, and was on authorized leave at the time of arrest or detention, the member may be found guilty of unauthorized absence only if it is proved that the member actually committed the offense for which detained, thus establishing that the absence was the result of the member's own misconduct. 3 (6) Inability to return. The status of absence without leave is not changed by an inability to return through sickness, lack of transportation facilities, or other disabilities. But the fact that all or part of a period of unauthorized absence was in a sense enforced or involuntary is a factor in extenuation and should be given due weight when considering the initial disposition of the offense. When, however, a person on authorized leave, without fault, is unable to return at the expiration thereof, that person has not committed the offense of absence without leave. (7) Determining the unit or organization of an accused. A person undergoing transfer between activities is ordinarily considered to be attached to the activity to which ordered to report. A person on temporary additional duty continues as a member of the regularly assigned unit and if the person is absent from the temporary duty assignment, the person becomes absent without leave from both units, and may be charged with being absent without leave from either unit. (8) Duration. Unauthorized absence under Article 86(3) is an instantaneous offense. It is complete at the instant an accused absents himself or herself without authority. Duration of the absence is a matter in aggravation for the purpose of increasing the maximum punishment authorized for the offense. Even if the duration of the absence is not over 3 days, it is ordinarily alleged in an Article 86(3) specification. If the duration is not alleged or if alleged but not proved, an accused can be convicted of and punished for only 1 day of unauthorized absence. (9) Computation of duration. In computing the duration of an unauthorized absence, any one continuous period of absence found that totals not more than 24 hours is counted as 1 day; any such period that totals more than 24 hours and not more than 48 hours is counted as 2 days, and so on. The hours of departure and return on different dates are assumed to be the same if not alleged and proved. For example, if an accused is found guilty of unauthorized absence from 0600 hours, 4 April, to 1000 hours, 7 April of the same year (76 hours), the maximum punishment would be based on an absence of 4 days. However, if the accused is found guilty simply of unauthorized absence from 4 April to 7 April, the maximum punishment would be based on an absence of 3 days. (10) Termination -- methods of return to military control. (a) Surrender to military authority. A surrender occurs when a person presents himself or herself to any military authority, whether or not a member of the same armed force, notifies that authority of his or her unauthorized absence status, and submits or 4 demonstrates a willingness to submit to military control. Such a surrender terminates the unauthorized absence. (b) Apprehension by military authority. Apprehension by military authority of a known absentee terminates an unauthorized absence. (c) Delivery to military authority. Delivery of a known absentee by anyone to military authority terminates the unauthorized absence. (d) Apprehension by civilian authorities at the request of the military. When an absentee is taken into custody by civilian authorities at the request of military authorities, the absence is terminated. (e) Apprehension by civilian authorities without prior military request. When an absentee is in the hands of civilian authorities for other reasons and these authorities make the absentee available for return to military control, the absence is terminated when the military authorities are informed of the absentee's availability. (11) Findings of more than one absence under one specification. An accused may properly be found guilty of two or more separate unauthorized absences under one specification, provided that each absence is included within the period alleged in the specification and provided that the accused was not misled. If an accused is found guilty of two or more unauthorized absences under a single specification, the maximum authorized punishment shall not exceed that authorized if the accused had been found guilty as charged in the specification. d. Lesser included offense. Article 80 -- attempts e. Maximum punishment. (1) Failing to go to, or going from, the appointed place of duty. Confinement for 1 month and forfeiture of two-thirds pay per month for 1 month. (2) Absence from unit, organization, or other place of duty. (a) For not more than 3 days. Confinement for 1 month and forfeiture of two-thirds pay per month for 1 month. (b) For more than 3 days but not more than 30 days. Confinement for 6 months and forfeiture of two-thirds pay per month for 6 months. (c) For more than 30 days. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year. 5 (d) For more than 30 days and terminated by apprehension. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 18 months. (3) From guard or watch. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. (4) From guard or watch with intent to abandon. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months. (5) With intent to avoid maneuvers or field exercises. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months. f. Sample specifications. (1) Failing to go or leaving place of duty. In that (personal jurisdiction data), did (at/on board -- location), on or about 20 , without authority, (fail to go at the time prescribed to) (go from) his/her appointed place of duty, to wit: (here set forth the appointed place of duty). (2) Absence from unit, organization, or place of duty. In that (personal jurisdiction data), did, on or about 20 , without authority, absent himself/herself from his/her (unit) (organization) (place of duty at which he/she was required to be), to wit: , located at , and did remain so absent until (he/she was apprehended) on or about 20 . (3) Absence from unit, organization, or place of duty with intent to avoid maneuvers or field exercises. In that (personal jurisdiction data), did, on or about 20 , without authority and with intent to avoid (maneuvers) (field exercises), absent himself/herself from his/her (unit) (organization) (place of duty at which he/she was required to be), to wit: located at ( ), and did remain so absent until on or about 20 . (4) Abandoning watch or guard. In that (personal jurisdiction data), being a member of the (guard) (watch) (duty section), did, (at/on board-location), on or about 20 , without authority, go from his/her (guard) (watch) (duty section) (with intent to abandon the same). 6