Nevertheless, as the GWOT gains momentum, fewer new recruits can be persuaded to enlist, and more GIs refuse to fight, I find that a UA, even after an absence of over 180 days, can be simply returned to her or his unit or transferred to another unit. Alternatively, a UA who is ultimately discharged is more likely to be court martialed or serve time in the brig. I discuss this in more detail below.

Both the Air Force and the Navy must be gone for over 180 days before paperwork is processed for discharge.

Discharges

It is impossible to list all the reasons why troops go AWOL/UA. Nevertheless, whether it is family hardship, a medical condition, a personal grievance, even a change of heart about war, the underlying theme is incompatibility with the military institution and its mission. By the time they go AWOL/UA, most service members have exhausted the military’s processes for redress -- with little success. Most find the AWOL/UA option worth the risk.

AWOLs or UAs usually – but not always -- receive an Other Than Honorable (OTH) discharge. This “bad paper” discharge could affect a service member’s future employment. A Bad Conduct Discharge (BCD) or Dishonorable Discharge (DD) will most certainly affect a service member’s future employment. These discharges, if given for a routine AWOL or UA, should be fought vigorously.

It is possible to upgrade a “bad paper” discharge but there is no guarantee that an upgrade will be granted. Some counselors believe that it may become easier to upgrade bad paper discharges if this war’s overall reputation as “noble,” “necessary,” and “against terror and WMDs” continues to plummet.

A caveat or two

Any service member seeking a discharge or considering going AWOL or UA is urged to call the GI Rights Hotline, the Military Law Task Force, or the Lawyers’ Guild to discuss options with a trained counselor or lawyer and discuss whether any changes have been made to the UCMJ. Given the history of GI resistance against unpopular wars and the large numbers of troops currently refusing to fight, it is likely the military will increase punishment to resistors. No service member should act without a thorough discussion of the pro’s and cons of her/his intended action.

In discussing the following high profile cases I share information gleaned from my or my colleagues’ work with these troops who have refused to fight. The stories of Ehren Watada and Agustin Aguayo’s for example, are available on the Internet and, instead of repeating information here, I reference applicable web sites.

Brave Hearts

“I have come to believe that it is wrong to destroy life, that it is wrong to use war, that it is immoral, and that I can no longer go down this path. Because I have taken this stand, I am free even though my body will probably be locked up. This is something I can live with. Something I can't live with is being a participant of war.”

Army Specialist Agustin Aguayo, U.S. Army, 1st Armored Division

During his one year tour of duty as a medic in Iraq, Agustin Aguayo was decorated for his service under combat conditions. Stationed in Germany in February 2004, he applied for an honorable discharge as a conscientious objector (CO). His application was denied by the Secretary of the Army. The U.S. District Court for the District of Columbia (which has jurisdiction over court cases concerning U.S. military personnel stationed abroad) upheld the Pentagon’s decision for reasons Aguayo’s attorneys believe are contrary to legal precedent.

Aguayo’s appeal is the first military CO case to come before the powerful and influential D.C. Circuit Court in the 35 years since the Vietnam War. His appeal is one of only a handful of CO cases to reach the appellate level; it is also the only one pending.

The U.S. government seeks to cut back on existing legal precedent, set during the Vietnam War, that civilian courts have authority, under the Writ of Habeas Corpus, to exercise oversight over the military’s decisions regarding CO applications. This precedent protects the right of conscientious objection which dates back to the Revolutionary War. In Aguayo’s case, the Army argues that the federal court should defer to military “expertise” without requiring any verifiable factual or logical basis for the Army’s denial of his CO application. This argument is consistent with recent attacks on the authority of independent courts to use the historic Writ of Habeas Corpus to challenge unfettered Executive power.

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