This article is part of a comprehensive series covering the punitive articles of the UCMJ (Uniform Code of Military Justice). It is intended for informational purposes only and does not constitute legal advice. Service members facing any UCMJ charge should consult a qualified military defense attorney.
Article 86 is the most charged offense in the UCMJ, and the least understood by the people charged with it. Most service members think of AWOL as a single thing: you left, you were not supposed to leave, you are in trouble. The statute is more complicated than that. It covers at least six distinct situations, punishes them on a sliding scale tied to duration and intent, and contains aggravated forms that look nothing like the stereotype of a soldier who missed a formation.
Understanding Article 86 (10 U.S.C. § 886) requires separating what it actually criminalizes from the way the military informally uses the term. In the Army and Air Force, the offense is called absence without leave. In the Navy and Marine Corps, it is unauthorized absence. Both refer to the same statute, and neither label captures its full scope.
What Exactly Does Article 86 Criminalize?
The statute covers three categories of conduct. Each has its own elements, and the differences matter for both charging and defense.
Failure to go
Article 86(1). A proper authority appointed a time and place of duty. Knowledge of that time and place is established. Without authority, the accused failed to go. This is the missed-formation charge, the failure-to-report charge. It does not require leaving anywhere. It requires not showing up.
Going from appointed place of duty
Article 86(2). The accused was at their appointed place. They left before being properly relieved. This covers the service member who walks out of a duty station, leaves a post before relief arrives, or departs a prescribed location without authorization.
Absence from unit, organization, or place of duty
Article 86(3). The accused absented themselves from where they were required to be, without authority, for a certain period. This is traditional AWOL, the broadest category and the one that captures everything from a missed day to a months-long disappearance.
The elements for Article 86(3) under the MCM (Part IV, Paragraph 10) are deceptively simple: the accused was absent from their unit, organization, or place of duty; the absence was without proper authority from someone competent to grant leave; and the absence lasted for a specific period. No specific intent is required for the basic offense. The prosecution does not need to prove why the accused left or what they planned to do while gone. The fact of unauthorized absence, plus knowledge of the duty requirement, is enough.
That knowledge element, however, is not a formality. The Court of Appeals for the Armed Forces held in United States v. Adams, 63 M.J. 223, that the government must establish the accused actually knew of the time and place of duty, though deliberate ignorance can satisfy this requirement. A service member who actively avoids learning about their obligations does not get to claim they did not know. But a service member who genuinely was never informed of a duty requirement has a viable defense.
Why Duration Changes Everything
Unlike most UCMJ offenses, where the act itself determines severity, Article 86 ties punishment directly to how long the accused was absent. The same conduct, leaving without authority, produces dramatically different consequences depending on whether it lasted two days or thirty-one.
For offenses before December 27, 2023, the MCM established clear duration tiers. An absence not exceeding three days carried a maximum of one month’s confinement and forfeiture of two-thirds pay for one month. An absence exceeding three days but not exceeding thirty days increased that to six months’ confinement. Beyond thirty days, the maximum jumped to a bad-conduct discharge, total forfeiture of all pay and allowances, and either twelve months’ confinement (if the accused returned voluntarily) or eighteen months (if terminated by apprehension).
For offenses on or after December 27, 2023, the sentencing parameters under Executive Order 14103 apply, and the category-based system partially replaces the traditional duration tiers. But the principle remains: longer absence means harsher punishment.
This makes the inception date of the absence, when exactly it began, a critical fact. In United States v. Hardeman, 59 M.J. 389, the court held that a definitive inception date is indispensable to a successful prosecution. Without it, the government cannot establish the duration. Without the duration, the court cannot determine the authorized punishment. And in United States v. Lynch, 47 C.M.R. 498 (C.M.A. 1973), the court confirmed that duration must be proved as part of the offense, not assumed.
The defense implications are immediate. If the government charges a thirty-one-day absence but can only prove twenty-eight days, the maximum punishment drops significantly. Every day matters. The charge sheet’s dates are allegations, and the defense is entitled to contest them.
How AWOL Becomes Something Else
Article 86 sits at the center of a web of related offenses, and the boundaries between them are where most litigation happens.
AWOL becomes desertion (Article 85)
when specific intent enters the picture. The physical act is identical, unauthorized absence from the unit. But if the prosecution can prove the accused intended to remain away permanently, intended to avoid hazardous duty, or intended to shirk important service, the charge escalates to Article 85. An absence exceeding thirty days creates a permissive inference, not a presumption, that the accused intended to desert. The defense can rebut this inference with evidence of intent to return, and the prosecution still bears the burden of proving specific intent beyond a reasonable doubt.
Because AWOL is a lesser included offense of most forms of desertion, a panel instructed on desertion can convict on AWOL instead if the specific intent element is not proven. This creates a practical dynamic: many Article 85 charges are resolved as Article 86 convictions, either through findings or plea negotiations.
AWOL becomes missing movement (Article 87)
when the absence causes the accused to miss the departure of a ship, aircraft, or unit. Article 87 is a separate offense with its own elements, but the underlying unauthorized absence is often charged alongside it.
AWOL overlaps with failure to obey (Article 92)
when a commander issues a specific order to report and the service member fails to comply. The CAAF has ruled that the maximum punishment in such overlap cases tracks Article 86 rather than Article 92, because the order’s purpose was to establish a duty requirement, not to independently regulate conduct. This prevents using an order to artificially inflate the punishment ceiling for what is functionally an absence offense.
The Aggravated Forms Most People Miss
The basic Article 86 offense requires no specific intent. But the statute’s aggravated forms do, and they change the character of the prosecution.
Abandoning watch, guard, or duty section
requires proof that the accused intended to completely separate from all further responsibility for that particular duty. This is not simply leaving early. It is the mental act of severing the obligation, deciding that the duty no longer applies. The prosecution must prove that specific intent, which elevates the burden significantly.
Absence with intent to avoid maneuvers or field exercises
requires proof that the accused left specifically to dodge a scheduled training event. The intent must be directed at avoidance of that particular duty, not merely a general desire to be elsewhere. Maximum punishment includes a bad-conduct discharge, substantially harsher than a basic short absence.
These aggravated forms matter because they demonstrate that Article 86 is not a monolith. The statute contains a spectrum from general intent offenses requiring nothing more than “you were not where you were supposed to be” to specific intent offenses requiring proof of the accused’s mental state. Defense counsel who treat all Article 86 charges as identical miss the distinctions that drive outcomes.
What Happens Before Court-Martial
Most Article 86 violations never reach a courtroom. The offense is commonly processed through non-judicial punishment under Article 15 (or Captain’s Mast in the Navy), administrative separation boards, or command-directed administrative actions. Court-martial is typically reserved for longer absences, repeat offenders, absences aggravated by other misconduct committed while AWOL, or cases where the government initially charged desertion and the accused negotiated a plea to the lesser included offense.
The administrative consequences of AWOL, however, can be as severe as the criminal ones. Loss of pay during the period of absence is automatic, a service member in AWOL status does not accrue pay. Time spent AWOL does not count toward service obligations, which can extend an enlistment. Negative evaluations, loss of security clearance, bar to reenlistment, and administrative separation with an Other Than Honorable characterization are all common outcomes even without court-martial.
For service members, the practical lesson is that the absence of criminal charges does not mean the absence of consequences. The administrative machinery runs independently, and an OTH discharge, which requires no conviction, can cost a service member access to veterans’ benefits, educational assistance, and employment opportunities that depend on discharge characterization.
Where Article 86 Connects to the Rest of the Code
Article 86 does not exist in isolation. It operates as one node in a network of UCMJ provisions that regulate a service member’s obligation to be present, to obey, and to perform.
Article 85 (Desertion)
is the escalation path, same physical absence, elevated by specific intent. Post 7 in this series examined the intent element in detail. The two articles are functionally inseparable: every desertion case contains an AWOL offense, and many AWOL cases carry the latent risk of escalation to desertion if the government can develop intent evidence.
Article 87 (Missing Movement)
captures the consequence of absence, when AWOL causes a service member to miss a ship, aircraft, or unit movement. The absence and the missed movement are separate offenses that can be charged together.
Article 87a (Resistance, Flight, Breach of Arrest, and Escape)
addresses what happens when a service member subject to restraint or arrest adds flight or escape to the absence. Unauthorized absence may begin as Article 86 but compounds into Article 87a territory once physical restraint is involved.
Article 92 (Failure to Obey Order or Regulation)
intersects whenever a commander issues a direct order to report. The absence violates both the general duty to be present (Article 86) and the specific order to report (Article 92), though punishment typically tracks the Article 86 ceiling.
Article 43 (Statute of Limitations)
applies a five-year window, but with a critical caveat: the limitation period does not run while the accused is absent from military jurisdiction. A service member who goes AWOL for four years and then returns has not escaped the statute, the clock was stopped the entire time.
The relationship between these articles is not academic. Charge selection, which article to charge, whether to include lesser included offenses, whether to stack charges, shapes the entire trajectory of a case. A service member facing a single AWOL charge is in a fundamentally different position than one facing AWOL plus desertion plus missing movement, even if the underlying facts are the same unauthorized absence.
Joseph L. Jordan, Attorney at Law: Article 86 is the most frequently charged UCMJ offense, covering three distinct categories: failure to go to an appointed place of duty, leaving an appointed place of duty, and absence from unit, organization, or place of duty. Punishment escalates with duration, and aggravated forms apply when the absence is terminated by apprehension.
This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is created by reading this content. If you are facing charges under the UCMJ or need legal guidance regarding military justice matters, consult a qualified military defense attorney.