The prosecution bears the burden of proving attempted desertion beyond a reasonable doubt, the same standard required for all criminal convictions in military courts. For attempted desertion specifically, the government must establish two key elements: first, that the accused performed an overt act that was a substantial step toward deserting, and second, that the accused specifically intended to remain away from their unit permanently or to avoid hazardous duty or important service.
The intent element is particularly crucial and often challenging to prove in attempted desertion cases. Unlike completed desertion where prolonged absence can help establish intent, attempted desertion requires evidence of the service member’s mental state at the time of the act. Prosecutors typically rely on statements made by the accused, preparation activities like selling belongings or buying one-way tickets, or documented expressions of intent to never return.
The overt act must be more than mere preparation; it must be a direct movement toward desertion that clearly indicates the accused’s criminal purpose. Simply thinking about deserting or discussing it with others is insufficient. Courts examine whether the accused’s actions, viewed objectively, strongly corroborate the required criminal intent and represent a substantial step toward permanent departure from military service.