Desertion is one of the most serious offenses in the military justice system, and it carries a built-in tension with the rules governing pretrial confinement. Desertion under Article 85 of the Uniform Code of Military Justice is, at its core, the offense of leaving or remaining absent with the intent to stay away permanently, or with the intent to avoid hazardous duty or shirk important service. Because the offense is defined by an intent not to return, a service member charged with desertion is often viewed as a flight risk. That perception shapes whether the member can be placed in pretrial confinement and how long that confinement may last. This article explains when confinement is permitted, the standards that apply, and the protections built into the process.
What pretrial confinement is, and what it is not
Pretrial confinement is the physical restraint of a service member before trial. It is not punishment, and it is not a finding of guilt. Its limited purposes are to ensure the member’s presence at trial and to prevent serious criminal misconduct while the case proceeds. Because confinement deprives a presumptively innocent person of liberty, the rules surrounding it are protective, and the government must justify each step.
The framework appears in the Rules for Courts-Martial, principally Rule for Courts-Martial 305. That rule sets out the grounds for confinement, the timeline for review, and the rights of the confinee. It applies across the offense spectrum, including desertion.
The standard for ordering confinement
Confinement is not automatic upon a desertion charge. Before a member may be confined, there must be probable cause to believe that an offense triable by court-martial has been committed and that the member committed it. Beyond probable cause, the deciding official must conclude that confinement is necessary because it is foreseeable that the member will not appear at trial, pretrial hearing, or investigation, or that the member will engage in serious criminal misconduct, and that less severe forms of restraint are inadequate.
This is where desertion is distinctive. The intent element of desertion, an intent to remain away permanently or to avoid duty, directly supports the conclusion that the member may flee or fail to appear. A member who has already absented himself with the intent not to return presents an obvious risk of doing so again. For that reason, commands frequently seek pretrial confinement in desertion cases, and the flight-risk ground is often the central justification.
The factors that guide the flight-risk analysis
The decision is individualized rather than mechanical. Officials assessing the necessity of confinement weigh factors that bear on the risk of nonappearance and on the danger of further misconduct. These include the nature and circumstances of the charged offenses, the member’s ties to the locale such as family and employment, the member’s record of appearance at or flight from prior proceedings, the weight of the evidence, and the likelihood that the member will commit further serious misconduct if left at liberty.
In a desertion case, several of these factors tend to point toward confinement. A prior unauthorized absence, a documented intent to stay away, weak ties to the current duty station, or evidence that the member attempted to evade apprehension all strengthen the government’s position. Conversely, strong local ties, a history of appearing when required, voluntary surrender, and family responsibilities can support release or a lesser form of restraint.
Alternatives to confinement
The rules favor the least restrictive means that will serve the purpose. Before resorting to confinement, the command should consider lesser forms of restraint, such as conditions on liberty, restriction to certain limits, or arrest in quarters. If a lesser form of restraint will reasonably ensure the member’s presence and prevent misconduct, confinement is not justified. The strength of the flight-risk concern in a desertion case does not eliminate this requirement; it simply makes confinement easier to justify when lesser measures would not suffice.
The review process and its timeline
A defining feature of military pretrial confinement is prompt, layered review. After a member is confined, a commander must review the confinement within a short period to decide whether continued confinement is warranted. A neutral and detached reviewing officer then examines the confinement, generally within seven days, to determine whether the legal standards are met. This review tests probable cause and the necessity of continued confinement under the governing rule. If the standards are not satisfied, the member must be released.
The protections do not end there. The defense may seek release from a military judge once charges are referred, and a member who is improperly confined may be entitled to administrative credit against any later sentence. These mechanisms exist precisely because confinement is a significant deprivation that must be continually justified.
Practical guidance for a member facing this situation
A service member charged with desertion and facing or already in pretrial confinement should request military defense counsel immediately. Counsel can challenge confinement at the earliest review, present evidence of ties to the community, voluntary return, or other mitigating facts, and argue for release or a lesser form of restraint. Counsel can also ensure that the timeline for review is honored and can pursue confinement credit if the rules were not followed. Because the flight-risk analysis is fact specific, the evidence the member’s counsel develops about appearance history and community ties can make a meaningful difference.
The bottom line
Yes, a service member charged with desertion can be held in pretrial confinement, and the nature of desertion often makes the flight-risk justification stronger than in other cases. But confinement is never automatic. It requires probable cause, a finding that confinement is necessary because lesser restraint will not suffice, and individualized consideration of risk factors. The Rules for Courts-Martial impose prompt and repeated review to guard against unjustified confinement. Anyone in this position should obtain qualified military counsel to test the confinement decision and protect their rights.
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.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.