ARTICLE 85 – DESERTION

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.