N.Y. Comp. Codes R. & Regs. tit. 9 § 515.9

Current through Register Vol. 46, No. 50, December 11, 2024

Section 515.9 - Absent without leave (awol) and unauthorized absence (ua)

(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.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 515.9