Defending UCMJ AWOL and Desertion Cases: Articles 85 and 86

Accusations of being Absent Without Leave (AWOL) or Desertion are far more serious than most service members initially realize. Commanders often treat these cases as simple discipline problems—yet the consequences can include federal convictions, punitive discharges, confinement, loss of benefits, and lifelong stigma. At Cave & Freeburg, we defend Soldiers, Sailors, Airmen, Marines, Guardians, and Coast Guardsmen facing AWOL or desertion allegations worldwide. We understand the stress that comes with being accused of walking away from the military, and we know how to build a clear, honest, and effective defense.

Why These Charges Are So Serious

Though Article 86 and Article 85 both involve unauthorized absence, the government treats them very differently:

• Article 86 (AWOL): Absence without authorization. The government must prove the member failed to go to, or left, their appointed place of duty and remained absent without permission.
• Article 85 (Desertion): The government must prove not just absence, but an intent to remain away permanently, avoid important service (such as deployment), or shirk hazardous duty. This dramatically increases the potential punishment.

Even short periods of absence can trigger aggressive prosecution—especially in the current environment where commands prioritize “good order and discipline” and where the services have become quicker to court-martial these cases rather than handle them administratively.

Common Defenses in AWOL and Desertion Cases

These cases often have more defenses than service members realize. Our job is to make sure the full story is told.

1. Lack of Intent (Article 85)

Desertion requires proof that you intended to remain away permanently or avoid hazardous duty. Injuries, mental-health conditions, family emergencies, or administrative confusion can undermine the government’s theory.

2. Mistake or Miscommunication

Deploying units, training commands, and large installations frequently mishandle paperwork. Orders are unclear. Profiles are lost. Leave forms are delayed. A misunderstanding is not a crime.

**3. 

Inability to Return to Duty

If a service member attempted to return to duty or was unable to return due to circumstances outside their control, that can defeat liability entirely.

**4. 

Improper Charging After Long Absences

Commands often assume a lengthy absence must be “desertion.” Not true. Length alone does not prove intent. The government must still prove why you left—and why they believe you meant never to return.

**5. 

Mental Health and Mitigation Evidence

Depression, anxiety, trauma, and service-connected conditions often drive absences. These are not excuses, but they are powerful mitigation that can reduce charges, lower punishments, or avoid a punitive discharge.

What We Do for Clients

Cave & Freeburg brings decades of experience defending AWOL and desertion cases across every branch and every major U.S. base worldwide. We:

• Investigate why the absence occurred and gather texts, medical records, and witness statements.
• Push back on overcharging—especially when commands jump straight to desertion without evidence of intent.
• Negotiate for charge reductions, administrative resolutions, or Chapter separations when appropriate.
• Fight for no-punitive-discharge outcomes to protect your record, benefits, and future.
• Prepare full trial defenses when the government refuses to be reasonable.

We have handled absences ranging from a mistake of hours to multi-year absences. Many clients return to duty or leave the service with far better outcomes than they expected.

What You Should Do Now

If you or a loved one is facing an AWOL or desertion investigation—or considering returning after a long absence—speak with a lawyer immediately. Anything said to command, CID, NCIS, or OSI can be used against you.

You have options. You have defenses. And you do not have to face the military justice system alone.

Contact Cave & Freeburg for a confidential consultation.