Desertion is one of the oldest and most serious offenses in military law, and under the Uniform Code of Military Justice it is set out in Article 85, codified at 10 U.S.C. 885. What separates desertion from the lesser offense of absence without leave is intent. Being absent without authority is a crime under Article 86, but desertion requires proof that the service member intended to abandon the service or to avoid important obligations of it. That added element of intent is what elevates desertion to the gravest category of absence offenses, one that in time of war can carry the death penalty.
What the Article Covers
Article 85 covers several related ways of abandoning military service. The most familiar is absence with the intent to remain away permanently. The article also reaches a service member who leaves or remains absent with the intent to avoid hazardous duty or to shirk important service, and it covers a member who quits a unit or organization with intent to avoid hazardous duty or to shirk important service. A further provision addresses enlisting or accepting an appointment in an armed force without disclosing a prior unterminated enlistment or obligation, sometimes called fraudulent or improper separation from one’s existing service. The common thread across all of these is a purpose to escape the duties of military service rather than a mere unauthorized absence.
The Elements
For desertion with intent to remain away permanently, the government must prove four elements. First, that the accused absented himself or herself from the unit, organization, or place of duty. Second, that the absence was without authority. Third, that the accused, at the time the absence began or at some point during the absence, intended to remain away permanently. And fourth, that the accused remained absent until the date alleged. The intent need not exist at the moment the absence began; it is enough that the accused formed the intent to stay away permanently at any point during the absence.
For desertion to avoid hazardous duty or to shirk important service, the government must prove the unauthorized absence or the quitting of the unit, together with the specific intent to avoid a particular hazardous duty or to shirk important service that the accused knew about. This form does not require an intent to leave the service forever; it requires an intent to dodge a specific significant obligation.
The Critical Role of Intent
Intent is the dividing line between desertion and absence without leave, and it is usually the most contested issue in a desertion case. The government rarely has direct proof of what was in the service member’s mind, so intent is typically established through circumstantial evidence. The length of the absence, statements the member made, steps taken to build a new life away from the military, disposal of uniforms or military identification, the acquisition of civilian employment, and the manner in which the absence ended can all support an inference of intent to remain away permanently. Conversely, evidence that the member intended to return, or took steps consistent with returning, undercuts the desertion charge and may reduce the offense to absence without leave.
Defenses
The most common defense to a desertion charge attacks the intent element. If the accused can show that there was no intent to remain away permanently and no intent to avoid hazardous duty or shirk important service, the offense may be reduced to absence without leave under Article 86, with its far lower penalties. Evidence of a plan or expectation to return is central to this approach. Authorization is a complete defense, since an absence approved by competent authority is not desertion. A genuine inability to return, caused by circumstances beyond the member’s control such as serious illness, hospitalization, or detention by civilian authorities, can negate the voluntary character of the absence. The defense may also contest the duration alleged or the identity of the official obligation said to have been avoided. As with any specific-intent crime, the government bears a demanding burden, and reasonable doubt about intent benefits the accused.
Maximum Punishment
The punishment for desertion depends heavily on the circumstances and, critically, on whether the offense was committed in time of war. Any person found guilty of desertion or attempt to desert committed in time of war may be punished by death or such other punishment as a court-martial directs. At any other time, the punishment is whatever a court-martial directs other than death. For the common peacetime offense of desertion with intent to remain away permanently, the maximum confinement is five years, along with a dishonorable discharge and total forfeiture of pay and allowances. The availability of capital punishment in wartime places desertion in a narrow class of the most serious military offenses, although such sentences are extraordinarily rare in practice.
How It Works in Practice
In practice, the great majority of unauthorized absences are charged as absence without leave rather than desertion, precisely because intent is hard to prove. Prosecutors reserve desertion charges for cases where the evidence of intent to abandon the service or to avoid a known obligation is strong, often where a long absence is paired with conduct showing the member built a new life elsewhere or deliberately ducked a deployment. The consequences extend well beyond confinement. A desertion conviction typically carries a dishonorable discharge, the loss of veterans’ benefits, and a lasting federal conviction that affects civilian employment and reputation. For these reasons, the difference between a desertion conviction and an absence-without-leave conviction is enormous, and the contest over intent frequently determines a service member’s future.
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.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
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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