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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

Failure to State An Offense

As noted in the first section, desertion can take three forms. In that regard, any specification that does not allege the specific form of intent may fail to state an offense.[9]

Lack of Specific Intent

The totality of the circumstances can negate the specific intent to remain permanently absent.[10] Defense counsel should be careful to examine your clients medical records for evidence that the accused was absent for the purpose of obtaining medical treatment for conditions that the military had refused to treat. One recent case involved a combat veteran who voluntarily returned to military control after completing treatment for back injuries that the unit had refused to treat. The manual does provide examples of circumstances that cannot negate specific intent, including:

  • Previous history of excellent service
  • That the accused left valuable personal property in the unit or ship
  • That the accused was under the influence of drugs or alcohol at the time of the absence

Mistake of Fact

There are occasions involving lengthy periods of absence where the accused mistakenly believed that he had been discharged from the armed forces. The authors have certainly seen cases where the client claimed that his noncommissioned officers told him to leave and never to return. There have also been cases where the accused was confused regarding the issuance of his discharge certificate. Mistake of fact can often help counsel resolve a desertion case administratively rather than by court-martial.

Statute of Limitation

Article 43 provides for a statute of limitations of five years for most offenses under the UCMJ. Under Article 43 (a), the statute of limitations may not apply during wartime. If the unauthorized absence began in peacetime, the five year statute of limitations will apply.[11] For purposes of calculating the statute of limitations, courts will count from the date the absence began to the day before receipt of charges by the summary court-martial convening authority.[12] The burden of proof of demonstrating that the charges are within the statute of limitations falls on the government. That rule is found in Rule for Courts-Martial 905 (c)(2)(B).

Military courts do allow the government to prefer desertion charges against an accused with an open-ended termination date. This stops the running of the statute of limitations. The future addition of the termination date would be a permissible minor change to the charges.[13]
Of course, an accused can always waive the statute of limitations in exchange for a favorable guilty plea. That sort of strategy would make sense where there is other misconduct at issue.

Former Jeopardy

In United States v. Hayes, the accused was tried for the lesser included offense of Absence without Leave. The government later attempted to prosecute him for desertion. The prior AWOL trial barred the desertion charges.

Impossibility

There are sometimes occasions where circumstances beyond your client’s control result in the client being forced to remain away from his or her unit. Medical conditions, of course, are easy for the defense to substantiate. The defense of impossibility, however, overlaps with the requirement that the government prove a specific intent to remain away from the unit or ship.

Duress

There are also times where the client may fear return to military control. In addition to a fear of bodily harm or death, some clients may fear sexual harassment. The bottom line is that any defense of duress must be reasonable.

Maximum Punishments & Lesser Included Offenses

The maximum punishment for a completed or attempted desertion with intent to avoid hazardous duty or to shirk important service is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. For other cases, where the termination is terminated by apprehension, the maximum punishment is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years. Where the desertion is terminated voluntarily, the maximum punishment is dishonorable discharge, forfeiture of all pay and allowances, and confinement for two years. In time of war, death is a possible punishment.

The only lesser included offense is Article 86 absence without leave.

References

  • [1] MCM, Pt. IV, ¶ 9a.
  • [2] MCM, Pt. IV, ¶ 9a.
  • [3] MCM, Pt. IV, ¶ 9a.
  • [4] MCM, Pt. IV, ¶ 9a.
  • [5] US v. Holder, 22 CMR 3 (CMA 1956).
  • [6] US v. Huet-Vaughn, 43 MJ 105 (CAAF 1995).
  • [7] US v. Care, 40 CMR 247 (CMA 1969).
  • [8] US v. Fields, 32 CMR 193 (CMA 1962).
  • [9] US v. Morgan, 44 CMR 989 (ACMR 1971).
  • [10] US v. Logan, 18 MJ 606 (AFCMR 1984).
  • [11] United States v. Miller, 38 MJ 121 (CMA 1993).
  • [12]United States v. Tunnel, 23 MJ 110 (CMA 1986).
  • [13] United States v. Reeves, 49 CMR 841 (ACMR 1975).
  • [14] Military Judges Benchbook, ¶ 3-9-1 – Desertion with intent to remain away permanently.
  • [15] Military Judges Benchbook, ¶ 3-9-2 – Desertion with intent to avoid hazardous duty or to shirk important service.
  • [16] Military Judges Benchbook, ¶ 3-9-3 – Desertion before notice of acceptance or resignation.
  • [17] Military Judges Benchbook, ¶ 3-9-4 – Attempted desertion.

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