The concept of “constructive desertion” is a specific and less common form of desertion under Article 85, UCMJ. It is evaluated by looking at the service member’s actions rather than trying to prove their subjective state of mind. A service member can be found guilty of desertion if they are absent without leave and, during their absence, they take an action that effectively terminates their military status, such as enlisting in a foreign country’s armed forces or seeking asylum in another country.
In these cases, the prosecution does not have to prove the accused had a specific, conscious intent to remain away from the U.S. military forever. The law “infers” or “constructs” the intent from the member’s own actions. The act of, for example, joining another military is so fundamentally inconsistent with an intent to return to their U.S. military duties that the law treats it as a permanent abandonment of their service. The evaluation focuses on the objective legal and political significance of the member’s actions during their absence.
A military defense attorney defending against such a charge would have to argue that their client’s actions did not actually have the effect of terminating their military status. For example, they might argue that their client did not formally “enlist” in a foreign service but was merely working with them in an informal capacity. However, this is a very difficult defense. Constructive desertion is a legal doctrine designed to address situations where a service member’s overt actions make their intent to desert undeniably clear.