(a) Introduction.
(1) This section and section
515.10 of
this Part have been developed to assist New York Army National Guard commanders
deal with AWOL problems. In order to effectively accomplish his mission, a
commander should maximize the use of his personnel assets (service members). If
a commander's unit is understaffed due to an excessive number of members being
absent without leave (AWOL), the commander will be hard-pressed to accomplish
his or her mission and have his or her unit be an effective force.
(2) Accordingly, commanders should take such
measures to ensure that members are present for duty when prescribed and
correct situations which produce excessive AWOL's.
(b) Objective. The purpose of this Chapter is
to provide commanders with guidance and the measures that can be taken from a
military justice perspective to ensure attendance for duty of his or her
members.
(c) Definitions. In order
to deal with the issues of attendance of members for duty some definitions
should be reviewed.
(1) Absent without leave
(AWOL) is defined in the New York State Military Law 130.82 as:
(i) any person subject to this code who
without proper authority:
(a) fails to go to
his appointed place of duty at the time prescribed; or
(b) goes from that place; or
(c) absent himself or remains absent from his
unit, organization or other place of duty at which he is required to be at the
time prescribed;
shall be punished as a court-martial may direct. The terms
absent without leave (AWOL) and unauthorized absence (UA) for purposes of this
Chapter are identical.
The New York State Military Law, like the Federal Uniform
Code of Military Justice, 1983 (UCMJ-1983) enumerates related offenses to AWOL
such as missing movement, New York State Military Law, section 130.83 and
desertion, New York State Military Law, section 130.81.
(2) Missing movement is
defined as any person subject to this code who through neglect or design misses
the movement of a ship, aircraft or unit with which he is required in the
course of duty to move shall be punished as a court-martial may
direct.
(3) Desertion is defined
as:
(i) Any member of the organized militia
who:
(a) without proper authority goes or
remains absent from his place of service, organization, or place of duty with
intent to remain away therefrom permanently; or
(b) quits his unit or organization or place
of duty with intent to avoid hazardous duty or to shirk important service;
or
(c) without being regularly
separated from one of the forces of the organized militia enlists or accepts an
appointment in the same or another one of the forces of the organized militia
without fully disclosing the fact that he has not been so regularly separated
is guilty of desertion.
(ii) Any officer of the organized militia
who, having tendered his resignation and prior to due notice of the acceptance
of the same, quits his post or proper duties without leave and with intent to
remain away therefrom permanently is guilty of desertion.
(iii) Any person found guilty of desertion or
attempted desertion shall be punished as a court-martial may direct.
(d) Measures to prevent
AWOL.
(1) Orientation of unit members. Unit
commanders, unit personnel officers, or personnel noncommissioned officers
(NCO's) must ensure that members are fully aware of and understand their
obligations. The members must further be made aware of the prerequisites for
participation and the actions that will result from unsatisfactory
participation. This information is furnished members by:
(i) Advising each newly assigned enlisted
member of the principal provisions of clauses (a)-(h) of this subparagraph as
they relate to enlistment or assignment. Emphasis will be placed on the
member's responsibility to keep his or her commander informed current mailing
address as required by AR 135-133, chapter 3. Enlisted members will also be
required to furnish the name and address of a person who will always know their
address.
(a) service obligations;
(b) participation requirements;
(c) excused absences from training;
(d) unexcused absences from
training;
(e) relocation of
residence (transfer to new unit);
(f) unit training schedule. Inform each newly
assigned member where it is posted and that it is his or her responsibility to
keep informed of the training schedule;
(g) reassignment and removal from
assignment;
(h) consequences of
failure to participate satisfactorily (non-judicial punishment and
courts-martial).
(ii)
Obtaining from each member with statutory or contractual obligation, a
statement acknowledging attendance at an orientation. The statement will show
that the member understands his or her service obligations and the
participation requirements. The ARNG will sign a Statement of Understanding of
Reserve Obligation and Responsibilities (NGR 600-200, NGB form 590). These
statements will be signed in the presence of and countersigned by the unit
commander, unit personnel officer, or personnel noncommissioned officer. A new
statement will be obtained from each member whenever changes are made in the
governing regulations which affect service obligations. This also includes
participation requirements and/or the consequences of failure to participate
satisfactorily. At least once annually, each member will review, initial and
date his or her signed orientation statement.
(iii) Screening the military personnel
records jacket, U.S. Army (MPRJ) of each newly assigned enlisted member to
ensure that the proper statement clause (1)(i)(b) of this subdivision has been
prepared. If this document is missing, the member must acknowledge an
understanding of the service requirements by signing and dating the proper
document.
(iv) Filing the statement
in the member's MPRJ as a permanent document.
(e) Factors to consider.
(1) The reasons for the failure of members to
report for duty at the prescribed time and place may have several sources. It
is the responsibility of commanders, as managers, to investigate these reasons
and take corrective action.
(2) The
following factors should be considered in selecting an appropriate course of
action. They include, but are not limited to, the following:
(i) The nature of the failure to report for
duty.
(a) Was it intentional, or was it
inadvertent? (i.e., a breakdown in communication or transportation. Did the
member know where and when he was to report, or was there a breakdown in a mode
of transportation to the place of duty?)
(b) If the failure to report for duty was
intentional;
(1) Did the individual fail to
report for duty for reasons of personal necessity? (i.e., conflicting civilian
employment schedule, or illness of individual or close family member, or
unalterable civilian vacation schedules).
(2) Did the member fail to report for duty
for selfish reasons? (i.e., going to a social or athletic event).
(3) Did the member fail to report for duty
due to fear of discrimination or harassment from members of the unit? (i.e., a
personality conflict between a commissioned officer and the member).
(f) Other factors to consider.
(1) The age and maturity of the
individual.
(2) The length of
service of the individual.
(3) The
rank of the individual.
(4) The
frequency of the unauthorized absences.
(5) Prior counseling, reprimands or
disciplinary actions.
(g) Commanders' options. In order to reduce
unauthorized absences, the commander shall employ the following measures:
(1) telephone inquiry to
individual;
(2) counseling
(oral);
(3) admonition (oral or
written);
(4) reprimand;
(5) withholding of privileges;
(6) restriction;
(7) extra duties;
(8) forfeiture of pay;
(9) reduction in grade;
(10) administrative separation; and
(11) courts-martial;
Note: Procedures in paragraphs (5)-(11) of this subdivision
can only be accomplished through non-judicial punishment or courts-martial.
Nonjudicial punishment is administered in accordance with Part 519 of this
Title. Measures such as restriction, withholding of privileges and extra duties
should not be imposed when the member is in IDT status
(h) Telephone inquiry of
individual
(1) Upon the discovery of a member
who has not reported for duty, the commander or his or her designee shall
telephone the absent member's home to ascertain his or her whereabouts and the
reason for the member's failure to report for duty
(2) The caller shall impress upon the member
or other person who answers the telephone that such unauthorized absence will
not be tolerated and that if there is a problem with him or her reporting for
duty that he or she should explain such reasons
(3) The caller shall maintain a log of the
calls indicating the date and time called, the individual and telephone number
called, the name of the caller and any remarks made by the individual called or
other person with whom the caller spoke. A sample log is in Appendix L-2
(A21)
(4) If the individual does
not have a legitimate reason for his or her failure to report for duty he or
she should be advised to report for AWOL counseling by the commander or his or
her designee on or prior to the next scheduled duty day. (See Appendix L-2
[A23] for appropriate action on absences)
(i) Notification by mail. In addition to the
telephone call, the absent individual should be forwarded two copies of a
letter, one by regular mail and the other by certified mail, return receipt
requested advising him or her that he or she was absent without leave on a
particular duty day for a particular period of time and that he or she had an
obligation to report for duty as prescribed and that he or she should advise
the commander if there exists any legitimate reason for his or her failure to
report for duty. The letter should also advise the member that he or she may be
subject to non-judicial punishment or courts-martial for his or her
unauthorized absence. A copy of such letter is in Appendix L-2 (A22)
(j) Counseling. Counseling is the least
severe procedure in the management of improper conduct. Counseling should be
informal and private. It is used to correct behavior which will require
disciplinary measures, if continued. Counseling is a positive nondisciplinary
management tool used primarily to correct or improve future behavior or
conduct
(k) Admonition. The
admonition, either oral or written, is suitable for first time AWOL's. This is
the lowest level of a disciplinary action and, in effect, serves as a first
time warning that, if the AWOL is repeated, more severe discipline may be
imposed. When imposing this form of discipline, the member should be allowed to
explain his or her actions and offer facts in mitigation or justification. The
member should also be specifically advised that, if the misconduct is repeated
more severe discipline will be imposed. An admonition may be included in a
reprimand
(l) Reprimand
(1) The reprimand is an act of formal censure
by a commander which reproves or rebukes the individual for his or her
AWOL
(2) Both the written
administrative admonition or reprimand will contain a statement that it has
been imposed as an administrative measure and not a punishment under Military
Law, section
130.15. Admonitions and reprimands imposed as punishment under
section
130.15, whether administered orally or in writing, should state clearly
that they were imposed as punishment under that section. The written statement
should contain, as a minimum, the following:
(i) An enumeration of the date, time and
place from which the member was absent without leave
(ii) The statement that the
admonition/reprimand is imposed as punishment under section
130.15 or as
administrative action
(iii) The
statement that the letter of admonition or reprimand will remain on file as a
temporary document not less than one year, or to the next reenlistment,
whichever is greater
(m) Other remedies
(1) If, after investigating the facts
surrounding the individual's reasons for not reporting for duty as prescribed,
the commander concludes that the individual is sincere and desires to
participate in the unit and is an asset to the unit, but has a problem with a
senior noncommissioned officer or commissioned officer, the commander may
consider:
(i) reassignment of the individual
within the unit;
(ii) transfer of
the individual to another unit; or
(iii) equivalent training or substituted unit
training assemblies (SUTA's) pursuant to NGR 350-1, para 2-7, 4-5 and
4-10
(n)
Further measures. If the foregoing measures prove fruitless to deter future
AWOL's, the commander should consider disciplinary measures such as
non-judicial punishment pursuant to New York Military Law, section
130.15 (see
Part 519 of this Title) or courts-martial pursuant to article 7 of the New York
State Military Law (see Parts 515 and 516 of this Title) and New York State
Manual for Courts-Martial
(o)
Separation. If the individual continues to accrue unauthorized absences after
the foregoing measures have been utilized, the commander should seriously
consider separation from the military pursuant to chapter 7, NGR 600-200 or
appropriate Air Force regulations.