Article 85 Desertion

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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

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For the better part of the last decade, Mr. Conway has become a nationally recognized resource on military justice. Daniel Conway is a former Marine staff sergeant and captain. He is a proud graduate of the University of Texas at San Antonio and University of New Hampshire School of Law. Mr. Conway is recently a former President of the New Hampshire Bar Association Military Law Section and a current member of the DC Bar. Mr. Conway has also written a book on Military Crimes and Defenses that is near publication with a major ...

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A Richmond, Virginia native, Mr. Pristera graduated from Virginia Commonwealth University with a degree in Mechanical Engineering. After spending some time as a DuPont engineer, specifically working on Kevlar manufacturing and ballistics applications, Mr. Pristera attended law school at the University of New Hampshire. On July 4, 2010, Mr. Pristera was commissioned in the U.S. Army in the Judge Advocate General’s Corps. Mr. Pristera spent almost six years on active duty. He spent just over three of those years in criminal defense, ...

Joseph Galli

Attorney

Originally from Portland, Maine, Mr. Galli attended Elmira College in New York on a four-year Army ROTC Scholarship. At Elmira, he double majored in Business Administration and Public Affairs. Mr. Galli graduated from Elmira College in 2009 with a Bachelor of Science degree and was Commissioned as a Second Lieutenant in the United States Army. Mr. Galli began his study of the law in 2009 at the University of New Hampshire School of Law. There, he focused on litigation and honed his advocacy skills as a member of the Advanced Trial ...

I Wanted To Thank You For Your Help With Our Case. We Were Surprised At The Many Roadblocks We Met With This Command, And Are So Grateful Your Firm Was There To Assist Us.

Dear Gary,

I wanted to thank you for your help with our case. We were surprised at the many roadblocks we met with this command, and are so grateful your firm was there to assist us. We were so pleased working with you as well as with Brian, who was exceptionally knowledgeable and smart. Beyond that, working with Brian was just very pleasant, and he really helped guide us through what proved to be a much more complex and contentious process than what I think any of us anticipated.
We are delighted A. is staying ashore in the meantime to address his medical issues and credit solely the assistance Brian and your firm have provided.

Thank you for all your help. We plan to be in touch after the adsep decision is made to consider our next step vis-vis A.'s Article 15.

In the meantime, please accept our profound gratitude.
All best.
M AND A.
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I was informed by company that my Security Clearance is suspended after a background investigation.

I was devastated, my job is now on the line. After contemplating doing the appeal by myself. I decided to seek representation. After doing some web research, and calling a few Lawyers and Law Services, I talked with Mr. Gary Myers, he called me back right away on a Friday afternoon! I explain the facts of my situation, while giving no guarantees he explained that he thinks he can help and that he has a very good Attorney to work my case, Mr. Brian Pristeria. After all the Lawyers I talked to Mr. Myers was the easiest to talk to, he was clear and precise, he got me focused on the information and materials I needed to send to him and Mr. Pristeria.

Mr. Pristeria was Professional, detailed and easy to work with. He counseled and guided me every step of the way. When Mr. Pristeria called and told me my Clearance was granted, I literally fell out of my chair. I owe the continuation of my Career to Mr. Myers and Mr. Pristeria. This Team is the Very Best Representation you can get!!!

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