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Ask the Lawyer: Think twice about going AWOL

I often receive questions from new service members about the steps they can take to get out of the military before the expiration of their initial enlistment. I also get questions from troops who have left their post and been marked absent without leave.

Each service has regulations on discharges of personnel in entry-level status. An ELS discharge is reserved for unsatisfactory performance and/or conduct while in an entry-level status, defined as less than 180 days of credible continuous active duty.

In this type of discharge, the commander must conduct formal counseling to give the member the opportunity to overcome the issue at hand before separation is initiated. The type of discharge is uncharacterized.

I have had clients tell me they were thinking about using drugs because their “barracks lawyer” told them they will get an ELS from a positive drug test result.

That’s wishful thinking. Drug use can result in anything from nonjudicial punishment for a first offense to a summary or special court-martial for second use. It can even lead to a discharge for patterns of misconduct and, ultimately, an other-than-honorable discharge.

If a service member is asking about entry-level separations, the next question is usually about what happens if he goes AWOL.

This is a serious crime under the Uniform Code of Military Justice. After 30 days in AWOL status, you will usually be listed as a deserter, and a federal warrant will be issued for your arrest.

Once you are in deserter status, you can turn yourself in at the nearest military installation or eventually be picked up by law enforcement officials. I know of service members who have been arrested on a desertion warrant during a traffic stop 10 years or more after they deserted.

In peacetime, the maximum punishment for desertion terminated by apprehension is a dishonorable discharge, forfeiture of pay and allowances, and three years in prison. Desertion in a time of war can lead to harsher punishments determined through a court-martial. It almost always includes an other-than-honorable discharge, which is not to be taken lightly, as it will stigmatize you in future employment and education.

Regardless of your situation, you should consult with an attorney knowledgeable in military law before making a decision that could jeopardize your future.

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Mathew B. Tully is an Iraq war veteran and founding partner of the law firm Tully Rinckey PLLC. E-mail questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.