As a service member in the U.S. military, you are obligated to fulfill your duties of service. Unfortunately, desertion is a serious problem and the U.S. Armed Forces does not look kindly on those charged with absence without leave (AWOL). If you were accused of this offense, you may be fearful as you consider the potential consequences that await you.
Not every AWOL charge is the same, however, and the outcome of your case depends on your alleged offense. According to the Manual for Courts-Martial, there are four different ways that a service member can be guilty of absence without leave.
- Failure to go to appointed place of duty: You can be charged with this offense if you were appointed to a certain time and place of duty, knew about the time and place, and failed to appear without an authority’s permission.
- Going from appointed place of duty: You can be charged with this offense if you were appointed to a certain time and place of duty, knew about the time and place, and left the place after reporting for duty without an authority’s permission.
- Absence from unity, organization, or place of duty with intent to avoid maneuvers or field exercises: Along with the elements of number two, you must also have known that your absence would occur during maneuvers or field exercises and intended to avoid all or part of these events.
- Abandoning watch or guard: You can be charged with this offense if you were a member of the guard, watch, or duty, absented yourself from one of these positions, did not have permission to do so, and intended to abandon your post.
Taking Action after an AWOL Accusation
Just because you were accused does not mean you will automatically be deemed guilty. You may have had a legitimate reason to leave your post without permission and in order to prove this, you need a military criminal defense attorney on your side.
Our firm has 40 years of shared experience handling military cases and can utilize our skills to defend your best interests in court. With an unshakeable work ethic, legal talent, and immense knowledge, we can build the strong defense that you need during this time.
Don’t let an AWOL accusation ruin your career and threaten your freedom. Contact McCormack & McCormack today to find out how we can assist you.
A court-martial is an extremely serious military proceeding that can result in the loss of many things, including your military career and your rank. In some cases of misconduct, however, it may be possible for a military commander to give an Article 15 instead of a court-martial. While this may be in your best interests, it is important to understand the details of an Article 15 and how it can impact your career and freedom.
What is an Article 15 in the Army?
Often called non-judicial punishment, an Article 15 is a federal law that allows commanding officers to conduct a non-judicial proceeding for minor offenses.
It is a way for commanders to settle accusations of minor misconduct against a soldier without utilizing higher forms of discipline. A soldier does have the right to refuse to accept an Article 15 and request trial by court-martial.
What are the Different Types of Article 15s?
In order to determine whether you should accept the Article 15 or instead request a court-martial, you should consider the various types of Article 15s. The three types of Article 15s are:
- Summarized: The maximum punishment at a summarized Article 15 can include extra duty for 14 days, restriction for 14 days, and/or an oral reprimand. Soldiers are not entitled to a defense attorney and may choose to request trial by court-martial.
- Company Grade: In this category, maximum punishment can include extra duty for 14 days, restriction for 14 days, oral reprimand, forfeiture of seven days base pay, and/or reduction in rank of one grade.
- Field Grade: Maximum punishment at a field grade Article 15 can include extra duty for 45 days, restriction for 60 days, oral reprimand, forfeiture of one-half base pay per month for two months, and/or reduction in rank to E-1 or reduction in rank of one grade.
If you are found guilty at the Article 15, your punishment typically begins right away. If you decide to appeal the Article 15 and do not receive a decision within five calendar days, you can ask that punishment involving extra duty or restriction be interrupted based on the outcome of your appeal.
Protect Your Rights with a Military Criminal Defense Attorney
When your freedom is on the line, it can be difficult to determine the best course of action. We at McCormack & McCormack have been representing criminally accused soldiers for a combined 40 years and understand the complexities of the criminal justice system you face.
Before you make an impulse decision, turn to our firm. We are eager to guide you toward the most favorable outcome and assist you with the details of your case. Call us right away at (757) 463-7224 to take advantage of your free consultation.
In every military sex assault case I handle, I file a motion to prevent the Government from using the word “victim” in reference to the complainant. Although this might seem petty in the scope of the assorted issues I usually deal with in a sex assault case, in actuality, it can be an extremely critical part of my trial strategy. This past week I represented a young soldier accused of wrongfully engaging in digital and penile penetration of a close friend, a female soldier who was allegedly sleeping. The complainant acknowledged that she had consensual sexual intercourse with my client five weeks earlier, as well as one other occasion involving sexual activity, but not intercourse. In response to a motion I filed to secure access to her mental health records, the military judge released some of the records to us.
At trial, the prosecutors and the complainant agreed that some of information in the records was relevant for use at trial. In response to another motion I filed as to prior sexual assaults reportedly suffered by the complainant, the prosecutors agreed that the fact that she had reportedly been sexually molested as a child, as well as being sexually assaulted by her First Sergeant two years earlier was also relevant. Although she testified that the prior sexual assault by the First Sergeant consisted of him “grabbing her butt,” we confronted her with the fact that one of the medical records that was approved for use at trial stated that she had been “raped” by the First Sergeant. The prosecution called an expert witness, a licensed clinical social worker who had been providing treatment to the complainant since the alleged sexual assault by my client.
The expert testified at length as to how the prior sexual assaults she reportedly suffered played a significant role in how she responded to the alleged sexual assault by my client. Evidence was provided that she had multiple symptoms commonly associated with sexual abuse. In response to a discovery request we filed, the prosecution provided us with a copy of all cell phone text records of the complainant. Upon review of the text records, we discovered some texts between her and a key witness in the case which confirmed information we had to the effect that the complainant had been involved with that witness and another woman in preparing and filing a false federal tax return for the other witness. At an earlier session of court, I was able to get the complainant to admit she had in fact committed that serious federal criminal offense of tax fraud.
In addition to the tax fraud offense, the complainant had testified that although she was at this time pregnant, that she was not in a relationship. We confronted her with the current home page of her Facebook account which had a heart on it, with the words “in a relationship” next to it. We also addressed her admission that despite all of her symptoms being consistent with a sex assault victim as testified to by the expert, such as withdrawal from friends, and disassociation, she testified that she had been involved in a “healthy relationship” with the father of the baby she was pregnant with, starting just three weeks after the alleged sexual assault by our client. Although this was essentially a “he said-she said” case as to if she was or was not sleeping when our client engaged in the subject sexual activity with her, our client had sent numerous text messages to her after the incident that were extremely damaging to our case, starting from his total denial of anything happening, to repeatedly apologizing.
He also referred to digitally penetrating her when she appeared to be asleep although he thought she was joking. Now back to the “victim” issue I raised in the pretrial motion. The prosecution agreed not use the word victim while examining witnesses, and that they would caution the witnesses not to use that word victim while testifying. However, as I fully expected, the law enforcement witnesses, as well as the expert witness responded to prosecution questions by referring to her as the “victim,” to which I immediately objected. The judge sustained my objection each time. Throughout the trial, my cross examination of the complainant, as well as the expert witness was aggressive and apparently very effective as could be determined by the extensive questions asked of the witnesses by the jury, almost all of which were very defense oriented questions. Upon the prosecution resting its’ case, I immediately stood up to advise the court that the defense rested, with no case to be presented.
Although I started this trial with the opinion that, in light of my client’s damaging text messages, I would have to advise my client that he should testify, after fully assessing the damage to the prosecution from my cross examination of the complainant, I advised my client that he should not testify and that we should present no evidence whatsoever. During the prosecutor’s closing argument, the prosecution acknowledged the case revolved around the credibility of the “victim” to which I wholeheartedly agreed – as I argued to the jury, once she admitted committing the federal tax fraud offense, she had no credibility. I also extensively argued that her admission that she was in a “healthy relationship” just three weeks after the alleged sexual assault, totally contradicted the expert’s testimony as to her being “withdrawn” and disassociating with her friends and family.
As to the question of the complainant’s assertion that she was not now in a relationship, I argued her denial of that and her explanation as to what was on her Facebook home page was simply not credible. I also noted that despite the fact that the complainant had admitted involvement in a federal tax fraud offense several months earlier, absolutely nothing had been done by the Government to charge her or even to investigate that offense – I argued that was apparently because she was a claiming to be a “victim” of a sexual assault. Although the prosecutor acknowledged that the “victim” had committed tax fraud, she argued that was one of many ‘red herrings’ that I had raised to muddy the water in an effort to divert the jury’s attention away from the only issue in the case which was did my client “wrongfully penetrate her with his finger and penis when she was asleep.”
Towards the end of my argument, I approached the jury and reminded them of the multiple objections I made as to the witnesses using the word ‘victim’ and that each objection was sustained by the judge. Then I looked at the prosecutors, as well as the “victim” who was sitting in the courtroom apparently with her family and friends, paused briefly, and told the jury that there was in fact a “victim” in this case – the young soldier sitting at my table, who was being falsely accused of a sexual assault. Approximately after an hour of deliberation, the jury returned with the verdict of NOT GUILTY. Shortly after the jury was excused and the court closed, two of the jury members sought me out, and congratulated me on a job well done.
Much has been said about how the military is not properly handling sex assault cases in the military. One factor can never be lost in all of this, and that is the foundation of our criminal justice system – that our Soldiers, Sailors, Airmen, Marines and members of the Coast Guard are presumed by law to be innocent, even in a sexual assault case. The fact that a complaint of sexual assault has been made cannot be allowed to overcome the strongest presumption our law provides, that of “innocent until proven guilty.” It is up to the court, whether it is a judge or a jury, to determine who the real “victim” in these cases is.
We frequently represent military personnel in state, federal and military court-martials on charges of domestic abuse. A conviction of a domestic violence offense has lifelong implications and can quickly bring to an end what has otherwise been an outstanding military career. The Domestic Violence Amendment to the Gun Control Act of 1968, commonly referred to as the Lautenberg Amendment, makes it unlawful for a service member who has been convicted of a crime of domestic violence by a state or federal court, or by a military court-martial, to possess a firearm or ammunition. There is no exception for members of the military, so a conviction means in almost all cases the end of a career.
We recently had the opportunity to represent a Navy Master Chief (E-9) who had an outstanding service record spanning over 23 years. His second marriage was short lived and ended with accusations of physical assault on four occasions, before and during the marriage. While at a hotel, the level of frustration rose to the point where our client left the room for a period of time in an effort to avoid a continued verbal confrontation with his wife. After our client returned to the room, the verbal confrontation continued, ending in what his wife says was our client physically assaulting her.
What our client did not know was that at some point his wife had secreted her video camera in her purse, so at his court martial for 4 specifications of assault and battery, as well as drunk and disorderly conduct, we faced an audio recording of approximately 10 minutes of the verbal argument, ending with his wife screaming as our client was allegedly physically assaulting her. The next day, his wife went to the hospital for her reported injuries, so we were also dealing with medical records reflecting that she had 4 contusions on her body from the alleged physical assault. At the Article 32 investigation, his wife testified at length as to the alleged abusive conduct of our client throughout their relationship, culminating in the alleged physical assault in the hotel when she said our client was intoxicated. The audio tape, on its face, was very disturbing and certainly was going to be a problem in a court-martial.
The charges were subsequently referred to a Special Court-Martial. Upon our advice, our client requested to be tried by a court consisting of officers and enlisted members. His wife testified about the alleged assaults and the night at the hotel, as well as her injuries and trip to the emergency room. Her best friend also testified as to her observations of the alleged abusive conduct of her husband, and her mother added her comments about the relationship. On cross examination of each witness, I was able to significantly undermine the testimony of each witness. The credibility of the wife (or actually her lack of credibility) was the focus of my several hours of intense cross examination.
The emergency room physician was called by the government to testify as to her injuries, yet in a quick several minute cross examination, she left the witness stand acknowledging that there was absolutely no physical evidence to support the assertion in the medical records that there were two contusions on her head, one on her shoulder and one on her hand. Reluctantly, the doctor admitted on my cross examination that the only evidence of injuries was the fact that my client’s wife said to the effect “Ouch, it hurts here, and here, and here and here.” In the prosecutor’s closing argument, he played the 10 minute recording, leaving the jury with the sound of my client’s wife screaming as she was allegedly being beaten by her husband.
Clearly the sound of her screaming was chilling and despite the points I was able to score on cross examination of each of the prosecution witnesses, the recording was a major concern. My argument highlighted the numerous inconsistencies between the witnesses, the lack of physical evidence to support the medical records and that his wife effectively set him up with the recording, screaming to make it appear she was being physically attacked when in fact it was all a well-orchestrated act in an effort to destroy the Master Chief’s outstanding career.
After several hours of deliberations, the jury returned with a verdict of NOT GUILTY to all charges.
Are you accused of going AWOL? The consequences can be significant if you do not have legal representation to assist you to defend against the accusation. Both AWOL and desertion are serious crimes, and under the UCMJ, the penalties imposed can be significant, particularly if an officer is accused of deserting a post.
If you, as a member of the Armed Forces, fail to go your appointed place of duty at the prescribed time, or leave without authorization from that place, or if you remain absent, you can be punished as directed by court martial if you are found guilty.
There are many reasons why a soldier could be absent from post beyond the desire to avoid duty or danger. The critical point is to ensure you have legal representation that is fully prepared to defend you in the court martial. Although you have the right to have an attorney assigned to you, it is advised that you enlist the services of a highly qualified military defense lawyer. A court appointed attorney is often fairly new to the system, and may not have yet developed the skills in defending against charges in military court that are necessary to achieve any level of success.
Under Article 85 of the UCMJ, if you remain absent from your organization, unit, or place of duty with the intent to never return, or for the purpose of shirking duty or avoiding hazardous duties, the crime is desertion. Under this Article, the death penalty could be imposed, although it is unlikely.
Contact McCormack & McCormack for defense counsel that has a high degree of experience in military court, and in defending against charges of AWOL.
It is extremely dangerous to be facing accusations related to violations of national security. The sentences imposed can be significant, and for many breaches of national security cases, can lead to decades served in prison. These cases can be difficult to defend, as gaining access to the material which is involved in the case is an issue that must be resolved. There is often the requirement that any individual involved in the case has the correct security clearance before viewing any of the material that is in question in the case. Your choice of defense counsel is extremely important in any criminal accusations regarding violations of security.
There are currently several high profile cases related to the illegal release of information to the press or other media. Whether you are facing a high profile accusation of violating national security with media attention, or are accused of such a violation in a less serious case, your future freedom is truly at risk. There is great focus on punishing any member of the Armed Forces who leaks secret material, whether in writing, by passing on files or information, or verbally.
Our government is extremely concerned about security breaches and identifying those that have leaked secret information that could impact national security. If you are facing a charge related to any such crime, there is a critical need for the highest quality military defense lawyer possible. At McCormack & McCormack, our legal team has outstanding qualifications and credentials to serve you. Our founding attorney served as both a prosecutor and defense attorney for the JAG Corps, and is now serving as a criminal defense lawyer in private practice. Get the help you need from a professional that has the insight to help you seek to avoid the extreme consequences of a conviction. Find out more about McCormack & McCormack before you make any decisions about how to proceed.
