Absence from Service: Legal Description and Effects
"Absent from service" is said in conversation about situations that the law treats differently: a young man who did not report when called, a soldier who did not return from leave, and a volunteer who left his unit and travelled. The office of lawyer Ali Barakat, in al-Yarmouk, Baghdad, separates these cases, because each has its own text and penalty.
Case one: failing to report
This is the conscript who did not appear for enlistment. Article 41 of the Military Service Law No. 65 of 1969 punishes failure to report without lawful excuse for seven days inside Iraq or fifteen days abroad, counted from the start of his intake's enlistment or from the end of his deferment or exception, with a fine or with imprisonment for each month of failure, up to a maximum of five years' imprisonment. Article 40 punishes not appearing before the examination committee on time. Since compulsory service has been on hold since CPA Order No. 2 of 2003, there is no call today that anyone could fail to answer.
The way out the law provided
Article 41(2) spares from punishment anyone who later completed compulsory service, or volunteered and served an equivalent period, without committing absence or desertion. Article 42 increases the penalty where examination shows the defaulter unfit for service, unless he proves the condition predated the call-up of his birth year, and also where he reports or is caught after passing service age. Article 51 sends trials for these acts to a military court.
Case two: absence during service
A person who has actually entered service, today a volunteer, is subject to the Military Penal Code No. 19 of 2007. Article 33(1) punishes with imprisonment of up to three years anyone who, without lawful excuse, is away from his unit or place of duty, or overstays his leave in peacetime, for more than fifteen days for ranks or ten days for officers. Article 33(2) raises the maximum to four years where this happens while discharges are suspended in an emergency. Article 36 makes absence during mobilisation an aggravating circumstance.
Short absences
Article 33(3) covers lesser breaches: missing duty without permission, failing to attend parade, or leaving the set bounds of the camp without permission, punishable by short imprisonment.
Case three: desertion
Desertion is graver than absence. Article 35 grades it: the heaviest penalty for deserting to the enemy, then desertion when facing the enemy or from a besieged position, then desertion within Iraq's borders, punishable by up to three years, with penalties also for inciting or facilitating desertion. Article 35(5) punishes a member of the military who flees abroad during his service, and anyone who knowingly helps or shelters him.
Surrender
Article 36(1) of the Military Penal Code treats a deserter's surrender out of remorse as a mitigating circumstance. Voluntary return changes his position before the court, though it does not erase the offence.
The volunteer who wants to leave
Many absence cases begin with a volunteer wanting to leave the army. Article 33(3) of the Military Service and Retirement Law No. 3 of 2010 does not allow leaving before the end of the volunteer term and a discharge decision, unless the Minister or his delegate agrees. The proper route is a request submitted and a decision awaited, not leaving the unit. The difference between the two laws is in Military Service Law versus the Military Service and Retirement Law.
Knowing and not reporting
Article 34 of the Military Penal Code punishes anyone who, knowing of absentees or deserters, does not report them or employs them in official or private work. This reaches an employer who knowingly employs a deserter.
Effect on the service count
Article 54 of the 1969 law excludes from the service period days spent in prison, absence, desertion, custody or detention. Absence therefore lengthens the period on top of its penalty. Service documents are covered in service completion certificate and documents.
Legal basis and sources
- Military Service Law No. 65 of 1969 (Official Gazette No. 1728 of 13/5/1969) — Articles 40, 41, 42, 51 and 54
- Military Penal Code No. 19 of 2007 (Official Gazette No. 4040 of 9/5/2007) — Articles 33, 34, 35 and 36
- Military Service and Retirement Law No. 3 of 2010 (Official Gazette No. 4143 of 8/2/2010) — Article 33
- Coalition Provisional Authority Order No. 2 of 2003, Dissolution of Entities (Official Gazette No. 3977 of 17/6/2003)
Frequently asked questions
After how many days is a soldier treated as absent?
Under article 33 of the Military Penal Code, punishable absence is more than fifteen days for ranks and ten days for officers in peacetime.
What is the difference between absence and desertion?
Absence is being away from the unit or overstaying leave; desertion is leaving service with no intention of returning, and carries a heavier penalty depending on its direction and circumstances.
Does surrendering help?
Yes. Article 36 treats it as a mitigating circumstance when it comes from remorse.
Related topics and articles
- 01The Military Service Law versus the Military Service and Retirement LawA comparison of the Military Service Law No. 65 of 1969, covering suspended compulsory service, and the Military Service and Retirement Law No. 3 of 2010, covering officers and volunteers: scope, entry, duration, leaving, retirement, and the shared penal code.
- 02Reserve Service and RecallWho is a reservist under the Military Service Law No. 65 of 1969, the grounds for recall and who decides them, the age at which reserve duty ends, exceptions, salary and job during recall, and the penalty for not reporting.
- 03Service Completion Certificate and DocumentsThe military service booklet and documents confirming completion, exception, exemption or deferment under the Military Service Law No. 65 of 1969: who issues them, where they were required, a lost booklet, and the penalty for forgery.
- 04The Military Service Law: Who Is CoveredWho the Iraqi Military Service Law No. 65 of 1969 addresses: males up to forty-five, the invitee and the conscript, the age of liability, civil register ages, naturalised Iraqis, and the effect of the 2003 suspension.
- 05Study Deferment from Military ServiceHow the Military Service Law No. 65 of 1969 regulated student deferment: article 8, failing two years, postgraduate study up to thirty, studying abroad, the service booklet, and the annual review of deferred persons.