Many people confuse the terms, AWOL and Desertion. Some people believe that AWOL is when someone is absent for less than 30 days, and someone absent from the military for 30 days or more is a deserter. That's not quite true.
Unauthorized absence from the military fall under three articles of the Uniform Code of Military Justice (UCMJ): Article 85, Desertion, Article 86, AWOL, and Article 87, Missing Movement. Of the three, Desertion is the most serious offense.
Missing Movement
A military member has violated Article 87 if he/she is ordered to be on a ship or an aircraft, or deploy with a unit on a certain date and time, and then fails to show up. It doesn't matter if the member failed to show up through intention or because of neglect, but it is required that the member knew about the movement. A viable defense would be that the member missed the movement through physical inability (as long as that physical inability wasn't a result of misconduct or neglect). The possible punishment is more severe if the member missed the movement on purpose. It's not uncommon for Missing Movement to be charged in conjunction with AWOL or Desertion, depending on the circumstances.
AWOL
AWOL, or "Absent without Leave," is usually called "Unauthorized Absence" (or UA) by the Navy and Marine Corps, and AWOL by the Army and Air Force. The use of "UA" by the Navy/Marine Corps and "AWOL" by the Army/Air Force is historical. Prior to enactment of the Uniform Code of Military Justice in 1951 the services were governed by separate laws. However, its official title under the current UCMJ is "AWOL" (a rose by any other name is still a rose). It simply means not being where you are supposed to be at the time you are supposed to be there. Being late for work is a violation of Article 86. Missing a medical appointment is a violation. So is disappearing for several days (or months, or years). The maximum possible punishments, which I'll discuss later in this article, depends on the exact circumstances of the absence.
Desertion
Did you know that desertion can result in the death penalty? It's true. The maximum punishment for desertion during "time of war" is death. However, since the Civil War, only one American servicemember has ever been executed for desertion -- Private Eddie Slovik in 1945.
The offense of desertion, under Article 85 carries a much greater punishment than the offense of AWOL, under Article 86. Many people believe that if one is absent without authority for 30 days or more, the offense changes from AWOL to desertion, but that's not quite true.
The primary difference between the two offenses is "intent to remain away permanently." If one intends to return to "military control" someday, one is guilty of AWOL, not desertion, even if they were away for 50 years. Conversely, if a person was absent for just one minute, and then captured, he could be convicted of desertion, if the prosecution could prove that the member intended to remain away from the military permanently.
The 30 Day Rule
So why do so many people confuse desertion and AWOL? It's because the services ADMINISTRATIVELY classify absent members as "deserters" once they have been gone for 30 days.
Once a member goes absent, each of the military services enter the member's information into their DIP (Deserter Information Point). At that time, the services take certain actions, such as stopping the member's pay and allowances, and contacting family members in an attempt to locate the absent member and convince them to return to their unit. On the 30th day, the member is "dropped from the unit rolls," (meaning the unit can fill the emply slot with a new person), and administratively classified as a "deserter." At that point the DIP-folks electronically enter the information into the "Wanted Persons File" in the FBI's National Crime Information Center (NCIC) computer.
That means the information is available to every law enforcement agency in the United States, and the member becomes a "wanted person," subject to arrest by any police officer. United States Code, Title 10, Section 808 states:
Any civil officer having authority to apprehend offenders under the laws of the United States or of a State, Commonwealth, possession, or the District of Columbia may summarily apprehend a deserter from the armed forces and deliver him into the custody of those forces.
The DIP center also sends the information to the Department of State, who then cancels any passports the member may have.
The military doesn't necessarily have to wait the full 30 days before administratively classifying an absent member as a deserter. If the facts and circumstances show that the member intends to remain away permanently (an example would be if they left a note saying they were never going to return), then the member can immediately be classified as such. Also, if he/she has gone to or remains in a foreign country and, while in the foreign country, has requested, applied for, or accepted, any type of asylum or residence permit from that country, they are immediately reclassified as a deserter. Other factors, such as whether the member is awaiting disposition for other military crimes at the time of AWOL, or if the member escape from military prison, can also result in immediate classification as a deserter.
The most significant factor about administrative classification as a deserter is the shift in "burden of proof." If a member, who has been absent for 30 days or less is tried by court-martial, the burden of proof that the member intended to remain away from military control rests on the prosecution. In order to support a guilty verdict for desertion (vice AWOL), the prosecution would have to prove (beyond a reasonable doubt), that the member intended to remain away from the military forever.
However, once the absentee has been administratively declared a deserter, the burden of proof shifts to the defense. The court is allowed to assume that the member intended to remain away permanently, unless the defense can provide clear evidence that the member intended to return to military control.
