The short answer is that a service member’s refusal to take part in a spiritual readiness program is unlikely to carry meaningful weight as evidence in a desertion prosecution, and any attempt to use it would face serious relevance and constitutional objections. To understand why, it helps to separate what desertion actually requires from what such a refusal can and cannot show.
What the government must prove in a desertion case
Desertion is charged under Article 85 of the Uniform Code of Military Justice. The most common form requires the government to prove three things beyond a reasonable doubt: that the accused absented himself or herself from a unit, organization, or place of duty; that the absence was without authority; and that at some point during the absence the accused intended to remain away permanently. That intent to stay away permanently is the element that distinguishes desertion from the lesser offense of unauthorized absence under Article 86, where no such intent is required.
Because intent to remain away permanently rarely comes with a written confession, the government usually proves it with circumstantial evidence. Courts look at conduct such as disposing of a uniform, taking up civilian employment under an assumed name, expressing an intention never to return, or fleeing to avoid prosecution. The length of the absence can be circumstantial evidence of intent, but length alone does not automatically convert an unauthorized absence into desertion. The question for any proposed item of evidence is whether it genuinely tends to make that specific mental state, the intent never to come back, more or less probable.
Why refusal to attend a spiritual readiness program proves little
Spiritual readiness programs are part of broader military resilience and wellness efforts. A decision not to participate, standing alone, says almost nothing about whether a person who later left the unit intended never to come back. Under Military Rule of Evidence 401, evidence is relevant only if it has some tendency to make a fact of consequence more or less probable. The logical gap between declining a voluntary or even encouraged wellness activity and forming a permanent intent to abandon military service is wide. A person can skip such a program for countless reasons, including religious objection, scheduling, skepticism about its value, or simple disinterest, none of which point toward desertion.
Even if a prosecutor argued that the refusal showed disengagement or low morale, that inference is weak and speculative. Military judges are gatekeepers under Military Rule of Evidence 403 and may exclude evidence when its slight probative value is substantially outweighed by the danger of unfair prejudice or of confusing the issues. Inviting a panel to treat a refusal to attend a spiritual activity as a step toward desertion risks exactly the kind of prejudice the rule guards against, because it encourages members to judge the accused on perceived attitude rather than on proof of intent.
The First Amendment and religious-accommodation dimension
There is a further and more serious problem. The First Amendment protects both the free exercise of religion and the right not to be compelled to engage in religious activity. Service members retain religious liberty protections, and federal law including the Religious Freedom Restoration Act constrains how the government may burden religious exercise. If a spiritual readiness program is framed in religious terms, punishing or drawing adverse inferences from a refusal can itself raise constitutional concerns.
Using a religiously grounded refusal as evidence of criminal intent would invite the argument that the government is penalizing protected conduct. That is a powerful objection for the defense, because it reframes the issue from a question of evidence to a question of whether the accused is being made to answer for the exercise of a constitutional right. Even where a program is described as secular and voluntary, the act of declining a wellness offering does not bear on the legal element of intent to remain away permanently.
How a defense would respond
A defense facing such evidence would attack it on several fronts at once. First, it would challenge relevance under Military Rule of Evidence 401, arguing that the refusal does not make the permanent-intent element more probable. Second, it would invoke Military Rule of Evidence 403, urging the judge to exclude the evidence as more prejudicial than probative. Third, if the program had any religious character, the defense would raise free-exercise and compelled-speech concerns and argue that drawing an adverse inference unconstitutionally burdens protected conduct. Fourth, the defense would point out that genuine evidence of intent to remain away permanently, the kind military courts actually rely on, looks entirely different and is far more concrete.
The bottom line
In theory a prosecutor can offer almost anything and let the military judge rule on it, so it is not accurate to say such evidence is categorically barred in every conceivable scenario. But as a practical and legal matter, a refusal to participate in a spiritual readiness program is poorly suited to proving the intent that desertion requires. It is weak on relevance, vulnerable under the balancing test, and exposed to constitutional challenge if it touches religious exercise. A desertion case stands or falls on real evidence of intent to abandon military service permanently, and a service member’s choice not to attend a wellness or spiritual program is not that evidence.
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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