If you’re thinking about going AWOL, don’t. The consequences are severe and permanent. If you’re already gone, call a UCMJ lawyer immediately. You can reach us at 800-319-3134 for a confidential case evaluation.
Our Experience Defending AWOL and Desertion Cases
Greg Gagne and Keith Scherer joined the Air Force JAG Corps in 2001, right after the September 11th attacks. From 2001 to 2005, they worked exclusively as court-martial litigators. In 2006, they left active duty and opened this firm to defend service members from all branches in UCMJ cases across the U.S. and overseas.
During the wars in Afghanistan and Iraq, we handled a heavy caseload of AWOL and desertion cases, mostly Marines and Soldiers. We saw how absence rates spike during wartime and how the priorities of military justice change. The military is in a relatively quiet period now, but war can break out at any moment. When it does, these cases come back in force.
How AWOL and Desertion Cases Actually Go
During the Global War on Terror, unauthorized absence rates were so high that prosecuting every case at court-martial was impossible. The military adapted. Most cases were resolved through nonjudicial punishment under Article 15, followed by an administrative discharge with an Other Than Honorable (OTH) characterization. Members who left after receiving deployment orders were far more likely to face court-martial. Some were arrested, sent downrange to finish their deployment, and then discharged or tried afterward.
The typical cycle of an AWOL case during the GWOT:
Member leaves. After 30 days, they’re flagged as a deserter in DoD and NCIC databases. An arrest warrant gets issued. The AWOL fugitive task force or local law enforcement arrests them, often during a routine traffic stop. They’re held in county jail, sometimes for weeks, then returned to military control, often via military transport. They’re placed in military confinement, and the case gets processed either through court-martial or NJP followed by an OTH discharge.
AWOL and Desertion Q&A: Separating Fact from Dangerous Myth
Most AWOL and desertion cases occurred without a civilian military attorney. Our firm handled more of these cases than any firm we know of. What follows is based on that experience.
Q: What counts as AWOL in the military?
AWOL (Absent Without Leave) means failing to be where you were ordered, when you were ordered, for more than a brief lapse. It’s different from “failure to go,” which covers missing a single event like an appointment. Unlike desertion, AWOL doesn’t require proof that you intended to stay away permanently. That’s why it’s the most common charge for unauthorized absence. Punishment depends on how long you were gone and the circumstances.
Q: How is desertion different from AWOL, and what counts as proof?
The key difference is intent. AWOL is just being gone. Desertion requires proof that you intended to stay away permanently or that you left to avoid combat or hazardous duty. Intent is proven through circumstantial evidence: burning your uniforms, moving overseas, leaving a detailed goodbye note.
Law enforcement databases flag you as a deserter after 30 days, but that database status isn’t proof at trial. The government still has to prove you intended to stay away permanently, which is often hard to do. That’s why most long absences are prosecuted as AWOL. We’ve represented Marines and Soldiers who were gone for years and avoided desertion convictions.
Q: Does it make a difference if I went AWOL before or after deployment orders?
Yes. Massive difference.
Before deployment orders: Usually treated as serious misconduct driven by immaturity, incompatibility with military service, or family crisis. Commands are more likely to resolve these cases with NJP or an administrative discharge.
After deployment orders: Leaving after orders are in hand is viewed as evasion of combat duty. Commands see it as forcing another service member into your slot. They prosecute these cases. Some units will even send you forward after you’re arrested, use you on the deployment, and then court-martial or discharge you once you return.
Q: Is there any legal defense to the AWOL charge itself?
Not in the legal sense that gets you a “Not Guilty” finding. AWOL is one of the easiest charges for the government to prove: you were ordered to be somewhere, and you weren’t there. Your reasons for leaving (a dying parent, severe depression, a family crisis) aren’t entirely irrelevant, but they go to mitigation (why the punishment should be lighter), not defense (why the charge is legally false). The best move is to stop the clock on your absence by returning to military control, then let your attorney build the strongest case for leniency.
Q: If I get an Other Than Honorable (OTH) discharge for AWOL, can it be upgraded later?
No. This is a myth that has destroyed many lives. There is no automatic upgrade after six months. There is no realistic chance of having it changed later. You can petition for an upgrade, and it will be denied. An OTH for AWOL is permanent and carries severe consequences for veterans benefits and employment. If the military gives you an OTH instead of confinement or a federal conviction, that is the break you’re getting.
We’re receiving calls in 2025 from service members who accepted an OTH discharge for AWOL in the mid-2000s based on bad advice that an upgrade was guaranteed. The fact that they’re calling us two decades later proves the advice was a lie. There is no fix for an OTH discharge years after the fact. Don’t gamble your future on this myth.
Q: How should I turn myself in if I’m AWOL?
The best plan is to surrender on your own, and the best way to do that is to have a lawyer coordinate your return.
If you wait, you’ll eventually be arrested, dragged into a police vehicle, locked in county jail for days or weeks, and then transported back to a military confinement facility.
If you turn yourself in, you avoid the civilian arrest process.
Drive, don’t fly. Drive to the closest military base. If you try to fly, you’ll likely be arrested at the ticket counter or security checkpoint.
Call your command before you arrive. Tell them you’re returning. You must take this step and follow through.
Your only leverage: Voluntary surrender helps you argue you didn’t intend to stay away permanently, which can be critical if your case goes to trial, and it increases your odds of avoiding a court-martial.
What a lawyer cannot do is negotiate a deal where you never return, your warrant disappears, and you receive a discharge. That option does not exist.
Why You Must Hire a Civilian Military Lawyer for AWOL
You won’t have access to a free, appointed military lawyer while you’re in AWOL or desertion status, and you may not have one assigned immediately after you return. If you don’t hire a lawyer, you’ll be entirely on your own during the most chaotic and dangerous phase of your case.
Going it alone when the military justice system is hunting you down and planning to prosecute you is a mistake.
The fear and uncertainty of the situation justify getting experienced legal representation.
Answers and a plan. Your attorney provides legal answers, gives you some control over your situations, and establishes a clear, safe plan for your return.
Family communication. Your attorney acts as the legal liaison, keeping your family out of direct contact with command and investigators.
Advocacy before you return. Your attorney can contact your chain of command, the legal office, and the military confinement facility ahead of your return to begin advocating for better treatment and to ensure your rights are respected.
Immediate representation. Your attorney can send you a picture of their business card that you can show government officials at every step, instantly signaling that you’re represented and prepared to fight.
You don’t have to hire a lawyer, but you’d be foolish not to talk to one.
Talk to a UCMJ Attorney About Your AWOL Case
If you’re facing AWOL, desertion, or any other UCMJ charges, call us at 800-319-3134 for a confidential case review.