Article 85 Desertion

Articles 85 through 87 of the UCMJ address offenses involving a service member who is absent from his or her unit without the authority to do so.

Desertion with intent to remain away permanently

• That the accused absented himself or herself from his or her unit, organization, or place of duty;
• That such absence was without authority;
• That the accused, at the time of the absences began or at some time during the absence, intended to remain away from his or her unit, organization, or place of duty permanently; and,
• That the accused remained absent until the date alleged.

and, if the absence was terminated by apprehension, add the element- That the accused’s absence was terminated by apprehension.[1]

Desertion with intent to avoid hazardous duty

• That the accused quit his or her unit, organization, or other place of duty;
• That the accused did so with the intent to avoid a certain duty or shirk a certain service;
• That the duty to be performed was hazardous or the service important;
• That the accused knew that he or she would be required for such duty or service; and,
• That the accused remained absent until the date alleged.[2]

Desertion before notice of acceptance of resignation

• That the accused was a commissioned officer of an armed force of the United States, and had tendered his or her resignation;
• That before he or she received notice of the acceptance of the resignation, the accused quit his or her post or proper duties;
• That the accused did so with the intent to remain away permanently from his or her post or proper duties;
• That the accused remained absent until the date alleged.

and, if the absence was terminated by apprehension, add the element
​-that the accused’s absence was terminated by apprehension.[3]

Attempted desertion

• That the accused did a certain overt act;
• That the act was done with the specific intent to desert;
• That the act amounted to more than mere preparation; and
• That the act apparently tended to effect the commission of the offense of desertion.[4]

SPECIFIC INTENT

Desertion is a specific intent offense.[5] The reason for the absence or desertion, however, is not the inquiry. Many clients will contemplate desertion on account of ethical or moral objections to war. That is not a defense to desertion.[6] The government must only prove that that the accused intended to remain away.

Evidence of intent is usually circumstantial, although we do see the occasional case where the accused has announced his intent to the world that he never intends to return to the military.

Circumstantial evidence usually includes factors such as:

• Length of absence. Longer absences tend to suggest an intent to remain away permanently. It is important to note, however, that the length of the absence alone is insufficient to establish an intent to desert.[7]
• Actions and statements of the accused;

Method of termination of the absence – whether voluntary or involuntary.

The intent to remain away permanently does not have to coincide with the accused’s departure from the unit. At some point during the absence, however, the accused must have had the intent to remain away permanently. MCM, pt. IV, para. 9.c.(1)(c)(i).

TERMINATION

The termination of a desertion offense by apprehension is an aggravating factor. Termination by apprehension as an aggravating circumstance can apply to each form of desertion except for absence with intent to avoid hazardous duty or shirk important service. An accused can be convicted of a desertion terminated by apprehension where he was arrested by civilian authorities for a civilian offense and only later notified of his military status.[8]

Common Defenses

• Failure to state an offense
• Lack of Specific Intent
• Mistake of Fact
• Running of the Statute of Limitations
• Former Jeopardy
• Impossibility
• Duress