Desertion under Article 85 of the Uniform Code of Military Justice (UCMJ) is one of the most serious absence offenses in military law. Service members sometimes assume that an absence that begins while they are on a temporary duty (TDY) assignment is treated differently, perhaps as a lesser offense, because the member was already away from the home unit. That assumption is mistaken. Desertion can be charged when the absence occurs during a temporary duty assignment, because what makes an absence desertion is not where the member was supposed to be but the member’s intent and the nature of the unauthorized absence.
What Article 85 requires
Desertion is fundamentally an absence offense joined with a particular state of mind. The most common form is absence with the intent to remain away permanently. To prove that form, the government must establish that the accused was absent from a unit, organization, or place of duty; that the absence was without authority; that at some point during the absence the accused intended to remain away permanently; and that the accused remained absent for the period alleged. When the absence is ended by apprehension rather than voluntary return, that fact is also alleged and proved.
Two other theories of desertion exist. One is quitting a unit or organization with intent to avoid hazardous duty or to shirk important service. The other applies to enlistment-related desertion. The most frequently litigated theory, however, is absence with intent to remain away permanently, and that is the framework most relevant to an absence that begins during TDY.
A place of duty includes a temporary duty location
The phrase place of duty in Article 85 is broad. A member’s place of duty is wherever the member is required to be by competent authority, and that includes a temporary duty location, a school, a training site, or any other assignment to which the member has been ordered. When a member is on TDY, the TDY site or the duties associated with it constitute the member’s place of duty for the duration of the assignment. Leaving that assignment without authority is just as much an unauthorized absence as leaving the home station would be.
For this reason, the TDY context does not insulate the member. If a member assigned to a temporary duty location departs without authority and forms the intent to remain away permanently, the elements of desertion can be satisfied exactly as they would be for an absence from the permanent unit.
Intent is the decisive element
The element that separates desertion from the lesser offense of absence without leave under Article 86 is the intent to remain away permanently. Article 86 does not require that intent; desertion does. This is true regardless of whether the absence began at the home unit or during a TDY assignment.
The intent to remain away permanently does not have to exist at the moment the member leaves. It is enough that the member formed that intent at some point during the absence. As a result, a member who leaves a TDY site intending only a brief unauthorized absence can still be guilty of desertion if, while absent, the member decides to abandon military service for good. Conversely, length of absence alone does not establish desertion. A member can be absent from a TDY assignment for an extended period and still lack the intent to remain away permanently, which would make the offense AWOL rather than desertion.
How intent is proved in a TDY absence
Because intent is a state of mind, it is usually proved through circumstantial evidence. Courts look at the surrounding facts to decide whether the inference of an intent to remain away permanently is justified. Relevant circumstances can include statements the member made about not returning, steps taken to sever ties with the service, disposal of uniforms or military identification, establishment of a new life elsewhere, the distance traveled, the length of the absence, and whether the return was voluntary or the product of apprehension.
In the TDY setting, the same kinds of evidence apply. The fact that the member was on temporary duty does not change the analysis; it simply describes the place of duty from which the member was absent. The government still must connect the absence to the intent to remain away permanently before the charge rises to desertion rather than AWOL.
Defenses and lesser offenses
A member accused of desertion arising from a TDY absence has several avenues. The strongest is to contest the intent element. If the evidence shows the member intended to return, or never formed an intent to remain away permanently, the appropriate offense is AWOL under Article 86, not desertion. Demonstrating a voluntary return, communication with the unit, or an intent to come back undercuts the permanence required for desertion.
Other defenses go to the authority element. If the member reasonably believed the absence was authorized, or if orders or circumstances created genuine confusion about where and when the member was required to be, those facts bear on whether the absence was truly without authority and on the member’s state of mind. As with AWOL, an honest and reasonable mistake about authorization can be significant. The viability of any defense depends entirely on the specific facts.
Conclusion
Desertion can be charged when an absence begins during a temporary duty assignment, because a TDY location is a place of duty for purposes of Article 85 and the offense turns on intent rather than on the type of assignment. The government must prove an unauthorized absence joined with the intent to remain away permanently, an intent that may be formed at any point during the absence and that is ordinarily established through circumstantial evidence. The TDY context does not provide a shield, but it also does not lower the government’s burden to prove the demanding intent element. Because the line between desertion and the lesser offense of AWOL can determine the severity of exposure, any service member accused of desertion arising from a temporary duty absence should consult experienced military defense counsel promptly.
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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