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INSIDE AWOL from the Army THIS ISSUE Version 2, January 2009 by J AMES M

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INSIDE AWOL from the Army THIS ISSUE Version 2, January 2009 by J AMES M The Newsletter of the Military Law Task Force of On Watch the National Lawyers Guild Volume XX, Number 3 January/February 2009 INSIDE AWOL from the Army THIS ISSUE Version 2, January 2009 BY J AMES M. B RANUM AND UPDATED BY S USAN B ASSEIN New Military Oversight for This article is intended to provide an I. Basic Concerns: The Requisite Dis- overview of the process that a lawyer or a claimer and “Worst Case” Scenarios Personality Disorder lay military counselor would use in assist- Diagnoses ing a soldier who is AWOL (absent with- One of the challenges in assisting Page 18 out leave), or considering going AWOL, AWOL soldiers is helping a soldier with from the US Army. While some of the his or her immediate situation without ideas discussed here would be applicable breaking the law oneself. (While I person- MLTF Meetings in to other branches of the military, it is im- ally respect, admire and appreciate any Detroit a Success perative to understand that many of the person who chooses to defy unjust laws in procedures discussed below are unique to following the higher law of conscience, this Page 19 the Army and that anyone who is assisting article is addressed to people like myself a servicemember from another branch who are compelled to comply with the MLTF should get the latest information on letter of the law.) The key thing to re- Announcements AWOL/UA (unauthorized absence) poli- member is that it is not against the law to cies from the sources listed in the adden- tell a soldier, Page 20 dum to this article. “It is against the law to go AWOL or I also should say that I am a fairly new stay AWOL. I cannot advise you to go or Submissions, comments or lawyer, having practiced for a little over stay AWOL, but I can tell you what the questions should be sent one year. The information provided here consequences of your illegal action would to: [email protected] is what I've learned from my own experi- be. I can also help you to deal with the ences as well as the very helpful advice of legal consequences of your decision.” On Watch Editors the members of the Military Law Task Chris Ford Force and the GI Rights Hotline network. If a soldier chooses to go AWOL after Kathleen Gilberd I've done my best to be as accurate and hearing this warning, s/he has acted with Harold Jordan complete as possible, but I would encour- the knowledge that to do so is illegal. And Jeff Lake age readers to double-check the article’s for soldiers who are already AWOL or accuracy before acting on its advice. If you thinking about going AWOL, it is best to Editorial Coordinators: find errors in this please email me so I can repeat the disclaimer above on every Jeff Lake fix it for future versions of this article. phone call, email or in-person meeting. Kathleen Gilberd Production Editor Addendum on AWOL/UA Rena Guay from Navy, Marine Corps & Air Force, page 16. Military Law Task Force January/February 2009 - Page 2 On Watch Where things get more sticky are those cases in which a was created to serve the Army’s best interests and has the soldier has decided to go AWOL but needs help in accom- following functions: plishing his or her goal. It is not uncommon for soldiers to ask for advice on how to leave a post, etc. While the lim- (1) to allow the Army to discharge AWOL soldiers who ited case law on the issue lacks clarity, it is probably a bad are unable or unlikely ever to be able to function well in the idea to tell a soldier who is not in actual danger of hurting Army; him/herself or others, how to go AWOL (i.e. “catch a taxi from the PX to get off the base”). If, however, a soldier is (2) to enforce discipline in the ranks and discourage sol- suicidal or homicidal, I think one could make a good argu- diers from going AWOL, since soldiers going through PCF ment that the necessity defense (the idea that a person are normally “punished” in most cases with an Other Than shouldn’t be punished for a crime, if the harm that the Honorable (OTH) discharge; criminal statute is intended to prevent is less harmful than the harm that would occur were the law followed) would (3) enable the Army to discharge soldiers who went excuse the soldier's action; since it is better to go AWOL AWOL from Europe, Korea, and other overseas non-active than to commit suicide or homicide. In theory at least, the war zone areas without having to spend the money to fly necessity defense would in turn protect a counselor or law- the AWOL soldier back overseas; and yer who “aided and abetted” a suicidal or homicidal AWOL soldier. (4) enable extreme cases of injustice to be corrected without considerable expense or command embarrassment. If a soldier is considering going AWOL, it is important to inform him or her of the worst case scenario. Certainly we The Army Acts in Its Own Self Interest hope to help our clients to avoid a negative outcome, but It is important to understand these objectives because they deserve to know the worst that can happen to them they help to explain why the PCF-eligibility rules are drawn before they chose to make a life-altering decision freighted the way they are. The Army for the most part does not with serious consequences. The types of punishment for care what is best for the soldier involved, but rather is su- AWOL-related offenses are found in the Manual for premely concerned with what is best for it as an institution. Courts-Martial (a set of regulations that interprets and But knowing the PCF process and its rationale in advance is fleshes out the Uniform Code of Military Justice, or UCMJ). a huge benefit as well for the AWOL soldier returning to However, to the knowledge of this author, the longest the system. AWOL-related sentence meted out during the current war is 18 months. Sentences of this duration have been given on A U.S. Army soldier is PCF eligible if he or she meets the two occasions: to SGT Kevin Benderman, and to PVT Neil following criteria: Quinten Lucas – both of whom served only 13 months be- fore being released. i ◦ The soldier is AWOL and has remained AWOL long enough to be dropped from the rolls (DFR’d) ; There are other “worst case scenarios” aside from being incarcerated. An AWOL soldier could be forced to remain ◦ The soldier fits into one of the following two catego- in the military by a command that refuses to court-martial ries: him or her (which might force a soldier to chose to break a. The soldier has not graduated from Advanced other laws such as disobeying orders if the soldier refuses Individual training (AIT), the stage of training to cooperate with remaining in the military). Another nega- that follows Basic training, OR tive outcome is that the friends and family of an AWOL soldier could in theory be prosecuted if they assisted their b. The soldier is OCONUS, i.e. stationed outside loved one in going or staying AWOL ii , but, based on avail- the Continental United States, which excludes able information, this hasn't happened since the Vietnam Alaska and Hawaii AND the soldier does not War era. have orders to deploy to either Iraq or Af- ghanistan, or is stationed in Iraq or Afghanistan. II. Determining PCF Status Generally the PCF eligibility rules apply to members of Eligibility and Exceptions the Army National Guard (ARNG) with one caveat: ARNG The PCF (Personnel Control Facility) process iii enables members are subject to state as well as federal law and AWOL soldiers to be discharged in a reasonably expedi- could face state law sanctions as well as sanctions under the tious fashion if they meet certain criteria. The PCF process UCMJ. iv Military Law On Watch January/February 2009 - Page 3 Task Force One other key point is that the command of an AWOL single source to confirm a completed DFR packet. Still, soldier can intervene and stop a soldier from being proc- some soldiers have been successful in obtaining confirma- essed out at PCF, even though the soldier is otherwise tion of their DFR status through other avenues. PCF-eligible. If this happens, PCF will transport the AWOL soldier to his or her prior duty station to face the music The following options were gathered by counselors with (normally by giving the AWOL soldier a ride to the airport the GI Rights Hotline Network, and compiled by GIRH and a plane ticket). At present, the only post doing this on a counselor Steve Woolford. They have been tried with vary- regular basis is Ft. Huachuca (an installation that trains ing degrees of success (success often depends on happening Army intelligence), which has been instructing PCF to not to reach someone willing to help even though doing so is process any of its soldiers who are AWOL from AIT at not a job requirement): their installation. Other posts occasionally do so and could adopt similar policies and practices as the norm. 1) Callers can contact the AWOL apprehension unit (part of the Military Police operation) at the base they left How an AWOL soldier finds out if he or she is DFR'd (or at a nearby base) and ask them to contact USADIP to Under AR 630-10, a unit is supposed to go through a find out if their packet has been filed.
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