AWOL And Desertion Defense: Resolving Unauthorized Absences

Last updated on July 28, 2026

When a service member fails to report for duty or leaves their post without authorization, the consequences can be severe and life-altering. We understand that circumstances leading to unauthorized absence are often complex and deeply personal.

Whether you are currently absent without leave or facing charges after returning to military control, the Stackhouse Law Firm is here to help you turn yourself in with a plan, not just a prayer.

Understanding The Legal Distinction: Article 86 Versus Article 85

The military justice system treats these offenses differently, and the prosecution must prove distinct elements for each charge. Understanding what separates a UA case from a desertion case directly affects your defense strategy.

Article 86: Unauthorized Absence

To convict you of unauthorized absence, the prosecution must prove you were required to be at your unit or a specific place of duty at a certain time, and that you were absent from that place without authority. The government does not have to prove you intended to stay away permanently, or even that you knew about a specific appointed time; that element only applies to the narrower “failure to go” version of this charge. Intent to return does not change whether the absence violated Article 86. 

Duration still matters, but it drives sentencing exposure rather than guilt. The maximum punishment increases in tiers as the absence gets longer, and an absence that runs longer than 30 days and ends by apprehension carries the most severe exposure under Article 86 itself, including a punitive discharge. This is the “30 days” that shows up most often in AWOL cases, a sentencing threshold under Article 86, not a legal presumption of desertion under Article 85. 

Article 85: Desertion

Desertion requires everything needed to prove unauthorized absence, plus a specific intent element the government must prove beyond a reasonable doubt: that you intended to remain away permanently, or that you left specifically to avoid hazardous duty or shirk important service. These are two distinct theories, and the government has to commit to one and prove it. 

 

Length of absence is one piece of circumstantial evidence a court may consider toward permanent intent — but it is not a threshold and not enough by itself. Courts have consistently held that even an extended, unexplained absence does not on its own establish desertion. The government has to point to something more: disposing of a uniform or gear, buying a one-way ticket to a distant location, statements indicating an intent not to return, or steps taken to sever ties (closing accounts, giving up a residence, and the like). The absence of that kind of evidence is often the strongest part of a desertion defense, regardless of how long the absence lasted. 

With over 22 years of experience handling unauthorized absence cases from all sides of the courtroom, attorney Phillip Stackhouse understands exactly how prosecutors attempt to prove “permanent intent” under Article 85, and how to challenge those assumptions to build a strong defense. 

Voluntary Return Strategy

The method of your return shapes how your command views your case. Returning voluntarily with legal counsel creates mitigating factors that reduce the likelihood of pretrial confinement and court-martial. We coordinate with your command to arrange a structured return that protects your rights, negotiate your initial status, ensure medical screenings occur, and position your case for administrative resolution where possible. Apprehension by civilian law enforcement usually results in harsher command action. 

The Critical Distinction Between AWOL And Desertion

The difference comes down to intent and how long you are gone. AWOL (absent without leave) happens when a service member is away from their unit without permission for any amount of time.

Desertion, however, means you intended to stay away permanently or avoid dangerous duty or important service. The military usually considers desertion after 30 days of unauthorized absence, though this is not always the case.

Attorney Phillip Stackhouse carefully looks at the facts of each case to challenge assumptions about intent and build a strong desertion defense.

What Penalties Can You Face For AWOL Or Desertion In San Diego Military Cases?

The punishments vary significantly based on duration, intent and circumstances. AWOL charges may result in:

• A reduction in rank
• Forfeiture of pay
• Restriction to base
• The maximum confinement for unauthorized absence varies by duration: less than 3 days – 1 month; 3 to 30 days – 6 months; more than 30 days – 1 year (18 months if terminated by apprehension)
• Punitive discharge

Desertion carries far more profound consequences, including:

• Punitive discharge
• Forfeiture of all pay and allowances
• Confinement for up to five years

In wartime, desertion can theoretically carry even harsher penalties. The Stackhouse Law Firm will work diligently to present mitigating factors that can reduce these severe consequences.

Can You Reduce Or Dismiss An AWOL Desertion Charge?

Yes, with proper legal representation and strategic planning. We focus on showing you did not intend to desert, presenting evidence of mental health problems, family crises or other serious circumstances beyond your control.

The voluntary return process, when handled correctly with legal counsel, greatly affects how commanders and prosecutors see your case. Attorney Stackhouse has helped many service members through the return process while protecting their rights and futures.

What Should I Do If I Am Currently AWOL Or UA?

The method of your return impacts your case. A voluntary return with legal counsel creates mitigating factors, whereas apprehension by civilian law enforcement usually results in harsher command action. Contact our office immediately to coordinate a structured return.

Can You Go To Jail For Being AWOL?

Yes. Depending on the duration of the absence and whether it occurred during a time of war or operational deployment, punishments can range from administrative separation to a dishonorable discharge and federal confinement at a military brig. The severity depends on whether your command pursues court-martial or administrative action.

Contact Us To Develop Your Defense Strategy

If you or a family member is facing AWOL desertion charges or thinking about voluntary return, time is critical. We serve service members in San Diego and worldwide.

An unauthorized absence will not disappear on its own. Contact our defense team confidentially at 855-678-1399 or send us a message to map out a safe, legally sound voluntary return strategy.