Defending Our Defenders Worldwide
AWOL vs. Desertion: What’s the Difference Under the UCMJ, Article 85 and 86?
Understanding the difference between AWOL and Desertion could mean the difference between a reprimand and a court-martial. Here’s what every service member and their family needs to know.
The Reality of Going “Missing” in the Military
Every year, hundreds of service members are charged under the Uniform Code of Military Justice (UCMJ) for being Absent Without Leave (AWOL) or for Desertion.
While the terms are often used interchangeably, they carry very different meanings — and very different consequences.
If you or someone you love has been accused of going AWOL or deserting, understanding the difference is the first step to protecting your rights, your career, and your freedom.
AWOL: Absent Without Leave (UCMJ Article 86)
Under Article 86 of the UCMJ, a service member is considered AWOL when they fail to report for duty, leave their assigned post, or remain absent from their unit without permission.
This offense typically applies to short absences or unintentional failures to return from leave.
Examples include:
- Missing morning formation without authorization
- Failing to return from leave on time
- Leaving your assigned duty location early
Penalties for AWOL may include:
- Reduction in rank
- Forfeiture of pay
- Confinement (up to 1 year depending on duration)
- Administrative separation
While being AWOL is serious, it’s often treated as a disciplinary issue rather than a criminal one — especially if you return voluntarily or the absence was brief.
Desertion: Leaving with Intent to Abandon (UCMJ Article 85)
Desertion, under Article 85, is far more severe.
It applies when a service member intentionally leaves their unit or post with no intent to return, or when they remain away to avoid hazardous duty, deployment, or court-martial proceedings.
Common examples of Desertion include:
- Leaving base knowing you will not return
- Fleeing deployment or combat assignments
- Going AWOL while under pending court-martial investigation
Penalties for Desertion can be extreme:
- Dishonorable discharge
- Forfeiture of all pay and benefits
- Confinement for up to 5 years
- In wartime: potential for life imprisonment or even death (though extremely rare)
The key difference is intent — prosecutors must prove that you intended not to return or to avoid duty.
AWOL vs. Desertion: The Key Differences
| Category | AWOL (Article 86) | Desertion (Article 85) |
|---|---|---|
| Intent | Usually unintentional | Intentional abandonment |
| Duration | Often short-term | Typically long-term |
| Punishment | Administrative or minor disciplinary action | Criminal court-martial |
| Record Impact | May lead to local record or minor separation | Results in dishonorable discharge |
| Typical Defenses | Miscommunication, medical emergency, unintentional absence | No intent to desert, duress, mental state, command failure |
Defending Against AWOL or Desertion Charges
If you’re accused of AWOL or desertion, timing and representation matter.
A skilled military defense lawyer can help you demonstrate mitigating factors, clarify intent, or show procedural errors that may reduce or eliminate punishment.
Common defense strategies include:
- Proving lack of intent to desert
- Showing you were absent due to mental health or medical reasons
- Establishing that you attempted to return or communicate with your unit
- Demonstrating command or administrative failure
Even if you’ve been absent for an extended period, voluntary return — especially when paired with representation — can significantly affect the outcome.
What To Do If You’re Facing AWOL or Desertion Charges
- Don’t ignore the situation. The longer you wait, the worse the consequences can be.
- Contact a defense attorney immediately. A lawyer can negotiate voluntary return, mitigate charges, or even prevent referral to court-martial.
- Avoid making statements without counsel. Anything you say to investigators or commanders can be used against you.
- Gather documentation. Medical records, communication attempts, and witness statements can help prove lack of intent.
Even if you’ve been gone for days, weeks, or longer, having an advocate early can mean the difference between administrative punishment and a felony-level conviction.
Frequently Asked Questions
What’s the difference between AWOL and Desertion?
AWOL is an unauthorized absence without intent to abandon service. Desertion means intentionally leaving with no intent to return.
Can you be charged with Desertion if you come back?
Yes. If the military believes you left to avoid duty or legal proceedings, you can still face desertion charges even if you return voluntarily.
How long can you be AWOL before it becomes Desertion?
There’s no fixed number of days — it depends on evidence of intent. However, absences longer than 30 days are more likely to trigger desertion investigations.
Can AWOL or Desertion affect my VA benefits?
Yes. Certain discharges related to desertion or misconduct can make you ineligible for VA benefits. A lawyer can help you appeal or upgrade your discharge.
Protect Your Record, Your Rank, and Your Future
Facing AWOL or Desertion charges under the UCMJ is one of the most serious moments in a military career.
But with experienced legal help, you can present your side of the story, prove your intent, and protect your future.