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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 15468
Experience:  Lawyer and current JAG officer.
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Hello, I have been charged with Article 86 AWOL (even though

Resolved Question:

Hello,

I have been charged with Article 86 AWOL (even though I had authorization from my supervisor to be on leave, and kept in contact with him all day, and he stated he was coming to pick me up because I have a medical condition and cannot drive). I just want to know if there are any errors in the way it was charged. And, can I really be charged with AWOL.
Submitted: 1 year ago.
Category: Military Law
Expert:  Allen M., Esq. replied 1 year ago.

Thank you for your question today, I look forward to assisting you. I have nearly 20 years of legal experience in various disciplines, including JAG.

 

You can be charged, yes. That doesn't mean that it would stand up in court if you were to demand trial by court martial.

 

That being said, there is a difference between your supervisor being aware that you are absent and that absence actually being legally approved.

 

If you call into your supervisor and tell them that you're going to be absent today, the fact that you just let them know doesn't mean the absence is approved. If you failed to make arrangements to arrive back from leave and they had to come retrieve you, because you can't drive, that would be a properly charged AWOL.

My point here is that AWOL is very fact specific and so your facts here are a bit to vague for me to say that you are absolutely improperly charged.

Customer: replied 1 year ago.
Here's the entire situation:

1. On 13 February 2013, I approached TSgt Hernandez (1SG) in his office to discuss a matter. I explained that I wanted to request leave because my husband’s sister was involved in a legal situation, and needed assistance in the States with childcare for her 6 children, in the event that she was arrested after the outcome of her trial on 26 Feb. I informed him that I wanted to request leave from 18 Feb-1 Mar, so that my husband could use the week of 18-22 Feb to have multiple attempts to board Space-A flights to make it to the trial on 26 Feb. I stated that after my husband departed, I would need to be at home to take care of my husband’s usual responsibilities with our children. Also, since I cannot currently drive my taking leave would alleviate the inconvenience of someone from our unit having to pick me up and drop me off every day, while my husband was gone. I informed TSgt Hernandez that if my husband’s sister did not go to jail on 26 Feb, my husband would immediately take a flight, and make it back to Sicily, Italy no later than 1 Mar. TSgt Hernandez asked what my “Plan B” was if his sister did go to jail. I explained that if she went to jail, my husband would have temporary custody of the children, rather than them going into State custody. At that point, I would need to extend my leave in order to pursue a DEROS curtailment and/or Humanitarian/Hardship PCS to return to the States, and become foster parents for the children. TSgt Hernandez agreed with my plan, stating that it may justify a hardship PCS, especially with the medical PCS issues already going on. He said that he would discuss the issue with the other members of my chain of command and get back with me.

2. Later that afternoon, TSgt Hernandez approached me, and let me know that my leave request was approved, and instructed me to submit the request in LeaveWeb. He stated that he informed MSgt Kulis to approve it in LeaveWeb. I received the approval in LeaveWeb, and the leave authorization number from SrA Hover (now SSgt).

3. My leave started on 18 Feb. My husband was able to board a Space-A flight. While I was on leave, I was also taking care of my Medical Evaluation Baord (MEB) obligations and discussing the possible medical PCS with my Physical Evaluation Board Liaison Officer (PEBLO) at Aviano AB via phone and email.

4. On Tuesday, 26 Feb, my husband informed me that his sister received a two-month continuance for her trial date, but was taken into custody until then. After getting off the phone with my husband, I immediately called TSgt Hernandez at his residence on his government cell phone after 1700. I informed TSgt Hernandez that my sister-in-law was taken into custody. He asked what I wanted to do from that point. I stated I wanted to stick to the original “Plan B”, and extend my leave to push for the DEROS curtailment and/or Humanitarian/Hardship PCS. I stated that I spoke to MPS, and found out that a DEROS curtailment could be approved in a short amount of time. TSgt Hernandez agreed with my plan, okayed my leave extension request, and stated that he would contact Aviano MPS to gather more information on the PCS process.

5. On Wednesday, 27 Feb, I began contacting Aviano MPS to find out what I needed to do on my end to initiate the DEROS curtailment. I was informed to type up the attached memorandum, and route it through my chain of command. I completed the memorandum, and emailed it to TSgt Hernandez. TSgt Hernandez emailed me back, informing me of an Early Return of Dependents (ERD) option, rather than a PCS of my entire family. I felt that the family separation would not resolve all of the current issues (medical, etc.) and wanted to continue pushing the DEROS Curtailment. I contacted TSgt Hernandez on his government cell phone after 1600 to further discuss the options. After further discussing the ERD/PCS options, he informed me that he would be starting leave on 28 Feb, and would pass all of the information to TSgt Calero, who would be the acting first sergeant. He told me to submit everything to her, and she would help me from then on.

6. On Thursday, 28 Feb, TSgt Calero contacted me to discuss the ERD/PCS options. She also informed me that I had a phone message to contact Mr. Robert Espinosa (Veteran’s Affairs contractor), regarding my initial VA appointments in Washington D.C.

7. I spoke with Mr. Robert Espinosa. He informed me that I was scheduled for VA appointments in Washington D.C. from March 12-18. I explained the current situation that I was in, and asked if the appointments could be rescheduled. He explained that he would have to speak with my PEBLO about rescheduling.

8. On Friday, 1 Mar, after not being able to reach my PEBLO by phone, I sent her the attached email explaining the current situation that I was in. After coordination with my medical teams at Aviano AB and NAS Sigonella, and my chain of command, it was established that, instead of the PCS, I would do a long-term medical TDY to Joint Base Andrews for the duration of my MEB (4-6 months). This would enable me to make my VA appointments, and bring my children CONUS with me via ERD to drop them off to my husband. My PEBLO then rescheduled my departure date from 12 Mar to 17 Mar to give me more time to out-process my dependents from NAS Sigonella.

9. TSgt Calero (acting 1SG) and I began coordinating the ERD package procedures via phone and email.

10. At this point I thought my leave was extended, since it was okayed by TSgt Hernandez on Tuesday, Feb 26. On Saturday, 2 Mar I emailed a hair braider (Sofy) on Facebook to make an appointment to get my hair braided. I knew I would be busy during the next two weeks with packing, so I wanted a hairstyle that would require little maintenance. I asked if she could do the braids sometime that week because I thought my leave was extended until my departure to D.C. Sofy stated that she was available Monday at 0900, and that was the time we agreed upon.

11. On Sunday, 3 Mar, I spoke to my husband to update him on everything that was happening. He asked if I was good to go with the leave extension. I informed him that I spoke with TSgt Hernandez about it on Tuesday, and he okayed it. After thinking about it, and given some of the episodes of miscommunication in the unit, I stated to be on the safe side I would call MSgt Kulis, since he is actually the approving official. I wanted to make sure the message was relayed to him, and I wanted to get his approval as well.

12. On Sunday evening, 3 Mar, I called MSgt Kulis at his residence on his government cell phone. I asked him if he was informed of everything that was going on, and that he was aware that I requested the leave extension. He replied “Yes.” I told him that I was calling to make sure the leave extension was okay with him. MSgt Kulis asked if the leave needed to be approved by my PEBLO at Aviano. I stated that the PEBLO does not approve/disapprove leave requests in the local area. I only needed approval from her if I was planning to leave the local area. I stated that she was already aware that I that I was currently on leave, and had all of my contact information, if she needed to contact me. MSgt Kulis responded, stating that the leave extension was okay with him, but he would have to stop by house the next morning, so I could sign my EPR. He told me that he would be at my residence at approx. 0800.

13. On Monday, 4 Mar, I got my two older daughters ready for school and escorted them to their bus at approx. 0715. My youngest daughter remained at home with me. MSgt Kulis arrived my residence after 0800. He presented me with two documents to sign…a referral EPR and the referral letter. There was already previous confusion with the referral letter (MSgt Kulis wanted to change the rater from himself to SMSgt Shaffer, even though SMSgt Shaffer was not my rater…this action violates Air Force regulation). Because of this, I asked if I could speak to legal before signing the referral letter. I told him that I would go ahead and sign the referral EPR, but hold on to the referral letter until after I spoke to legal. MSgt Kulis okayed this, and departed for work.

14. The hair braider was running a little late, so I called her sometime after 0900. She arrived my residence at approx. 0920, and began braiding.

15. I received a phone call from MSgt Kulis after 1000. He stated that “they” needed me to come into work. I asked, “Why…is something wrong?” MSgt Kulis stated that I needed to come in to complete my ERD package. I stated that I was already doing that via email/phone with TSgt Calero. I asked if it was possible to continue coordinating everything through email/phone. MSgt Kulis stated that he would ask, and call me back.

16. MSgt Kulis called back, stating “they” said no. He said he would come pick me up. I informed MSgt Kulis that I was in the middle of getting my hair braided, and my hair was completely out of uniform regulation (Afro on the top and braids in the back). I asked if I could ask the braider to try to cover the “Afro” portion, so that my hair would be in regulation. I informed him that it would not take long to do so. MSgt Kulis said, “Okay, that’s fine…just call me back when you’re done.”

17. I told the braider that we needed to stop, and finish at a later time because my supervisor was coming to pick me up to go to work. I asked if she could just cover the parts of my hair that were exposed. About 20 minutes later, I called MSgt Kulis’s office phone back. SrA Davis answered the phone, and I asked if MSgt Kulis was there. SrA Davis informed me that MSgt Kulis was out of the office. I asked him to ask MSgt Kulis to call me back as soon as he returned.

18. MSgt Kulis called me back approx. 15 minutes later. I told him I was ready to go. He told me that he would come pick me up in about an hour. Since we had another hour, I asked the braider to continue trying to cover the exposed parts of my hair until my supervisor arrived.

19. MSgt Kulis called me back after 1300. He stated that he was on his way. Since it was so late in the afternoon, I asked if he was sure he wanted to come. I reminded him that my older two older children would be coming home from school at approx. 1440. By the time we got to work, we would have to turn back around again to go back home to meet my children at the bus stop. He asked if I could take all of the kids to the local Italian daycare that my youngest daughter is enrolled in. I stated that I could ask the daycare director, but I would have to complete the enrollment packets for my older two children, since they were not registered. Also, the daycare closes at 1700, so I would only be at work for that day for about 2 hours, until I had to go back and get my children.

20. With all the confusion, I reminded MSgt Kulis that this was the reason that I needed to extend my leave. Since my husband was in the States and cannot drive, I would need help with transportation. I would need someone to pick me up at 0800 to take me youngest daughter to daycare when it opened. Then, I would need someone to drop me back off at 1400 because I am on limited duty hours, and I needed to meet my older children at the bus stop at 1440. There is no public transportation that I could take to duty, and the taxi service would be over $100 per day, which I could not afford at the time. Since I had more than enough leave days, I expressed that the easiest resolution would be for me to remain on leave until I departed for my VA appointments in Washington D.C on 17 Mar. MSgt Kulis agreed with me, and stated that he would ask “them”, but if not, he would just pick me up the next morning. I said okay, and reminded him again of the time my youngest daughter’s daycare opens (0800).

21. On Tuesday, 5 Mar, I woke up early, got my daughters ready for school, and got myself ready to go into work, in case I was unable to remain on leave. While waiting to see if MSgt Kulis would arrive, I began calling the base to gather information for the out-processing procedures for my dependents. I contacted my PEBLO at approx. 0730 to brief her about what was going on. Ms. April Fortin (PEBLO) asked if I was still on leave. I responded that I was not sure at the moment, and was waiting for my supervisor to pick me up if I needed to go in. MSgt Kulis usually did PT on Tuesday, Thursday, and Friday, so it was not uncommon for him to pick me up late on those days.

22. At 0857, I sent TSgt Calero an email with the information I gathered about out-processing my dependents. Then, immediately called her to discuss the ERD and the information I sent her. TSgt Calero asked why I wasn’t at work. I replied, “If my leave wasn’t extended, MSgt Kulis is supposed to be picking me up.” She asked if I called MSgt Kulis. I replied, “No, but I will call him right now”.

23. At approx. 0900, I called MSgt Kulis, who was in his office, and asked him why he didn’t come pick me up. He said something along the lines of “I forgot you needed a ride”. I reminded him that we discussed all of that yesterday afternoon. He stated that he would come pick me up shortly. MSgt Kulis arrived my residence at approx. 1000; we dropped off my youngest daughter at daycare, and arrived our duty station at approx. 1030.
Expert:  Allen M., Esq. replied 1 year ago.

On these facts, if they offer you any discipline for AWOL, I would refuse it and demand trial by court martial.

 

You did not knowingly refuse or fail to go to any assigned duty. From these facts, it seems that they wanted to get paperwork done, but simply had completely failed to remember that they had approved leave and you appropriately were relying on that grant of leave.

 

I see no legitimate basis for an AWOL charge here.

Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 15468
Experience: Lawyer and current JAG officer.
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