When Unauthorized Absence Or AWOL May Not Be a Crime According to Military Law

There are times when unforeseen circumstances can prohibit a military member from returning to duty after a stint of authorized leave. Here are a few situations where a member would probably not be found guilty of unauthorized absence:

Physically disabled: If a circumstance arose where a member was advised to remain in bed for health reasons, which meant he was unable to return to duty, then most probably he would be found to be physically incapacitated. If, on the other hand, the cause of illness was found to be self-induced, so that the member didn’t have to return, then it could be a whole different story.

There was case law where a member went AWOL to obtain dental treatment through civilian means. The reason the member did this was because there had been a difference of opinion concerning the required medical treatment, and the member went untreated. This was not accepted as a defense for physical incapacity.

Transportation misfortunes: There may be unfortunate circumstances that prevent a member from returning to duty, but the circumstances are very rigid. It has to be a pretty good excuse to get one off the hook in this circumstance.

For example, a member was returning to duty from a weekend pass when his car broke down. The member decided to stay with the car while it was being repaired. As a result it put him in an unauthorized absence position. He was not able to use the defense of “no fault,” and was found to have stayed with his vehicle for his own convenience.

Acts of God: To the surprise of many, this is often not an acceptable defense. For example, if there were some type of warning that a storm, earthquake, or some other natural disaster were pending for the near future and the member had the opportunity to return to duty before disaster struck, they could be found guilty of the offence of unauthorized leave if they were then delayed due to the event.

Unauthorized leave due to civilian confinement: This is a very complex area of the law pertaining to a member who is confined and therefore unable to return to duty. The outcome would be based on the circumstances of the civilian findings.

These are just a few basic examples that make the point that nothing should ever be taken for granted when it comes to military law. Obtain legal advice as quickly as possible in the face of any charges, no matter how small they seem.

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