QandO: Was Bush really AWOL?

September 08, 2004

Was Bush really AWOL?
Posted by McQ

Well not if the Uniform Code of Military Justice is correct. AWOL or Absent Without Leave is a military charge under the UCMJ. Article 86.

As with all articles of the UCMJ there are certain requirements for and restrictions of its application.

A) It requires that the person in question be subject to the UCMJ.

B) The person in question must then have violated one of the articles of the UCMJ

All this discussion about George Bush being AWOL revolves around "B". Everyone assumes "A" to be a given.

But is it?

Per the UCMJ's listing of who is subject to its articles we find this:

Article 2 of the UCMJ. Persons subject to this chapter

(a) The following persons are subject to this chapter:

(1) Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment; volunteers from the time of their muster or acceptance into the armed forces; inductees from the time of their actual induction into the armed forces; and other persons lawfully called or ordered into, or to duty in or for training in, the armed forces, from the dates when they are required by the terms of the call or order to obey it.

(2) Cadets, aviation cadets, and midshipmen.

(3) Members of a reserve component while on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service.

(4) Retired members of a regular component of the armed forces who are entitled to pay.

(5) Retired members of a reserve component who are receiving hospitalization from an armed force.

(6) Members of the Fleet Reserve and Fleet Marine Corps Reserve.

(7) Persons in custody of the armed forces serving a sentence imposed by a court-martial.

(8) Members of the National Oceanic and Atmospheric Ad-ministration, Public Health Service, and other organizations, when assigned to and serving with the armed forces.

(9) Prisoners of war in custody of the armed forces.

(10) In time of war, persons serving with or accompanying an armed force in the field.

(11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Common-wealth of Puerto Rico, Guam, and the Virgin Islands.

(12) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons within an area leased by or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary concerned and which is outside the United States and outside the Canal Zone, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

(b) The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of jurisdiction under subsection (a) and a change of status from civilian to member of the armed forces shall be effective upon the taking of the oath of enlistment.

(c) Notwithstanding any other provision of law, a person serving with an armed force who—

(1) submitted voluntarily to military authority;

(2) met the mental competence and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority;

(3) received military pay or allowances;and

(4) performed military duties;

(d)

(1) A member of a reserve component who is not on active duty and who is made the subject of proceedings under section 81 (article 15) or section 830 (article 30) with respect to an offense against this chapter may be ordered to active duty involuntarily for the purpose of

(A) investigation under section 832 of this title (article 32);

(B) trial by court-martial; or

(C) nonjudicial punishment under section 815 of this title (article 15).

(2) A member of a reserve component may not be ordered to active duty under paragraph (1) except with respect to an offense committed while the member was

(A) on active duty; or

(B) on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service.

(3) Authority to order a member to active duty under paragraph (1) shall be exercised under regulations prescribed by the President.

(4) A member may be ordered to active duty under paragraph (1) only by a person empowered to convene general courts-martial in a regular component of the armed forces.

(5) A member ordered to active duty under paragraph (1), unless the order to active duty was approved by the Secretary concerned, may not

(A) be sentenced to confinement; or

(B) be required to serve a punishment consisting of any restriction on liberty during a period other than a period of inactive-duty training or active duty (other than active duty ordered under paragraph (l)).

(e) The provisions of this section are subject to section 876(d)(2) of this title (article 76b(d)(2).

I've listed it all to preemptively thwart those who would holler I only used selective parts of the regulation. Note the two parts I emphasized. What do they say?

That a member of the Army National Guard or the Air National Guard are subject to the UCMJ only "when in Federal service."

In other words, the National Guardsmen now serving under federal authority in Iraq are subject to the UCMJ. However the National Guardsmen presently serving the Governor of the state of Florida in disaster relief are not.

All that to say that technically Bush could never have been charged with either AWOL or desertion under the UCMJ since when the alleged occurrances took place, he wasn't serving the federal authority and thus wasn't even subject to the UCMJ.

UPDATE: Beltway Traffic Jam

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Comments

"No controlling legal authority ...."

Posted by: mklutra at September 8, 2004 01:37 PM

Precisely ... which give lie to the AWOL charges.

In this case its actually true that the UCMJ was not the "contolling legal authority" and thus its charge of AWOL could not be applied.

Bush has nothing to do with that, MK ... that's just the reality of the situation. Now that you know that, the next time you pop off with a "Bush was AWOL", I'll be forced to call your statement a lie.

Posted by: McQ at September 8, 2004 01:40 PM

McQ,
Just a quick question. What version of the UCMJ was this taken from? The current version, or the version from when Bush served? Is there a difference with regard to National Guard service? I'm not sure and cannot access the site from work.

Posted by: Curt Mitchell at September 8, 2004 01:46 PM

bravo, but your explanation is inconvienient to those with an agenda and thus it will be ignored.

Posted by: capt joe at September 8, 2004 01:48 PM

Curt: Its my understanding that this has always been the case since the NG belongs to the states and not the federal government like the army reserves. The reserves is a federal entity. The Guard is a state entity and they guard it jealously.

Posted by: McQ at September 8, 2004 01:50 PM

In fairness, if it were to be proven that Bush had not showed up for required service, there are provisions of the Texas statutes that impose penalties for going AWOL:

§ 432.131. Absence Without Leave
A person subject to this chapter shall be punished as a court-martial directs if the person without authority:

(1) fails to go to his appointed place of duty at the time prescribed;

(2) goes from that place; or

(3) absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed.

The debate here is about whether there's a hint of evidence that Bush didn't do something he was required or counted on to do. Which there still isn't.

Posted by: Crank at September 8, 2004 06:22 PM

Let's see here. The Christmas-in-Cambodia, et al., press release about 7/31; MSM finally dragged kicking and screaming by bloggers to address story in raise-only-to-refute fashion, about 8/27.

Bush AWOL story hit for about 35 days straight March-April; new Kerry campaign team says on 9/5 they're going on the attack; multiple, purely coincidental, articles on the discovery of even more Bush NG service records which support his service (hey, folks need to know when a dog bites a man, bub!) on 9/6, and AWOL back in play.

Heck no, the media isn't partial to one party or campaign; they're just interested in the truth... if it's too damaging...to their guy.

Posted by: Jumbo at September 8, 2004 06:24 PM

A working link to crank's source is here.

And he's absolutely right about the real point, related to section 3 - there's no evidence Bush did not do something he was required to do.

None. Zero. Zip.

Posted by: Sigivald at September 8, 2004 06:30 PM

Whoa there, mates!

While it is true that LT Bush could not be charged with AWOL because of his Air Guard Classification, the Guard and Reserves have a different classsification.

Its called "Unauthorized Absence." Technically, abreviated as "UA" or shortened for the Sign-in / Sign-out roster as "U".

A "U" is not an UCMJ violation--it is a classification for pay and accountability.

Even today, if a National Guardsman or a Reservist receives nine "Us" in a year's time, they are to be separated from service. Thirty-five years ago, one COULD go into the Inactive Guard Program until one's status could be determined OR shipped off to Vietnam--technically Active Duty, but then, we all know where that would have ended up.

The only problem is that most of the time, the nine "U" rule was not fully enforced. Units carried "ghost" soldiers to ensure funding and make commanders look good. And, only the truly needy got Active Duty status and sent to Vietnam--those who commanders felt needing a one year tour.

I don't want to get into LT Bush's reasoning for taking the time off. Most Guardsmen and Reservist use the liberal policies to come to drill whenever they want. They continue to play this game even today. You have so many points to accrue per year to have a "good year" towards retirement. If you intend to retire from the Guard and Reserves, one must have 20 good years and receive the all important Twenty Year Letter. If you don't plan on retiring, then why bother with having good years--as long as you are not charged with a crime, you will receive an Honorable Discharge just for completing your statuatory obligation. Once they are activated/mobilized for more than thirty days, however, a guardsman is a federal soldier, subject as noted to UCMJ charge AWOL.

Further noted with UCMJ is the fact that one cannot be classified as AWOL unless missing from duty for thirty days. This is hard for Guardsmen in state status as they only drill for one weekend a month and two-three weeks of annual training.

So, LT Bush was UA for pay--this did not stop his "actively drilling" status for discharge, nor did it mean that he broke UCMJ. Still, the question that needs to be asked is why didn't the Texas Air National Guard leadership follow proper procedure? As a former IG (Inspector General), that would be the question that I would be asking.

Posted by: Airborne at September 12, 2004 10:27 PM