Many service members assume that desertion requires actually getting away, and that if a member is stopped before leaving the base, no charge can follow. That assumption misunderstands how military law treats inchoate crimes. Under the Uniform Code of Military Justice, a failed attempt at desertion can be charged even when the member never physically leaves the installation, because the law punishes the intent combined with a substantial step toward the offense, not merely the completed escape.
Desertion and its central element
Desertion is charged under Article 85, UCMJ. The offense is not defined simply by being absent; it is defined by the accused’s state of mind. The government must prove that the member was absent or quit the unit, and, critically, that the member did so with the intent to remain away permanently, or with the intent to avoid hazardous duty or to shirk important service. That specific intent is what separates desertion from the lesser offense of unauthorized absence. A short absence with intent to return is unauthorized absence; an absence coupled with the intent never to come back is desertion. Because intent is the heart of the offense, the law can reach conduct that demonstrates that intent even before the member succeeds in leaving.
How an attempt fits in
The general law of attempts under Article 80, UCMJ, supplies the framework for a failed desertion. An attempt requires a specific intent to commit a particular offense, an overt act, and that the act amount to more than mere preparation while tending to effect the commission of the offense. Applied to desertion, an attempted desertion exists when a member, with the intent to desert, takes a substantial step toward leaving that goes beyond planning, even though some intervening circumstance prevents completion. The fact that the member is intercepted, changes course, or is caught on the installation does not erase the attempt. Once the substantial overt act is taken with the requisite intent, subsequent abandonment or interruption does not undo the liability that has already attached.
Why staying on the installation does not defeat the charge
The decisive point is that the prosecution does not have to prove the member actually got off the base. It must prove the intent to desert and a substantial step toward carrying it out. Conduct that courts have recognized as the kind of overt act sufficient for an attempt includes concrete preparatory acts that move from planning into execution. A frequently cited illustration in military attempt law is a member concealing himself in a freight car intending to escape military control; that act can constitute the overt act for an attempt even though the member has not yet successfully departed. By analogy, a member who packs and hides, who tries to slip past a gate, who arranges and begins to execute an escape, or who takes other concrete steps toward leaving permanently may be charged with attempted desertion if the intent to desert is proven, regardless of whether he made it past the perimeter.
What the government must still prove
A failed-attempt theory does not lower the government’s burden on intent; if anything, it sharpens the focus on it. The prosecution must establish that the member actually intended to remain away permanently, or to avoid hazardous duty or shirk important service, and not merely that he intended a temporary absence or was contemplating leaving. It must also establish that the member took an act that crossed the line from mere preparation into a substantial step. Both elements are commonly contested. Defense counsel may argue that the member intended only a brief, unauthorized absence, which would support at most an unauthorized-absence offense rather than desertion. Counsel may argue that the member’s conduct never advanced past preparation and that thinking about leaving, packing a bag, or expressing frustration does not amount to an overt act. And counsel may argue that the evidence of permanent intent is too thin to meet the beyond-a-reasonable-doubt standard.
Distinguishing the lesser offense
Because intent is so central, attempted desertion frequently lives alongside the lesser offense of attempted or actual unauthorized absence under Article 86. The practical battleground is whether the member intended to stay away for good. Where the evidence of permanent intent is strong, an attempt to leave the installation can support an attempted desertion charge. Where that evidence is weak, the same conduct may be properly characterized only as an absence offense. Distinguishing the two is often the most important task for the defense, because the consequences differ significantly.
Sentencing considerations
An attempted offense is generally punished under the framework applicable to attempts rather than carrying the identical maximum as the completed crime, and for conduct subject to the modern sentencing rules, confinement exposure is also influenced by the sentencing parameters established under the Military Justice Act and its implementing executive order. The exact exposure depends on the specific facts, the form of desertion alleged, and the date of the conduct, so a member should not assume a failed attempt is treated as a minor matter.
The bottom line
Failed attempts at desertion are chargeable under the UCMJ even when the member never leaves the installation, because Article 80 and Article 85 together punish the intent to desert combined with a substantial step toward it. The government does not need a completed escape; it needs proof of permanent intent and an overt act beyond preparation. That same focus on intent gives the defense its strongest arguments, since establishing only a temporary absence, or showing the conduct never passed mere preparation, can defeat the desertion theory. Anyone facing such a charge should consult experienced military counsel promptly to evaluate the intent evidence and the line between preparation and attempt.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
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Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
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