Attempted desertion sits at the intersection of two punitive articles of the Uniform Code of Military Justice (UCMJ): Article 85, which defines desertion (10 U.S.C. 885), and Article 80, which defines attempts (10 U.S.C. 880). Prosecuting it means proving that the accused tried to desert but did not complete the offense. The burden of proof question has two parts that should not be confused: the standard of proof, which is the level of certainty the government must reach, and the elements, which are the specific facts the government must establish to that standard. For attempted desertion, the standard is proof beyond a reasonable doubt, and the elements combine the specific intent at the heart of desertion with the substantial step requirement of attempt.
The standard of proof: beyond a reasonable doubt
In any court-martial, the government carries the burden of proof, and the standard is proof beyond a reasonable doubt. The accused is presumed innocent, and that presumption remains until the government overcomes it. This is the same demanding criminal standard used for completed offenses, and it applies fully to attempted desertion. The government must convince the factfinder, beyond a reasonable doubt, of every element of the attempt.
This matters because attempt is an inchoate offense. Even though the accused never completed the desertion, the prosecution is not relieved of the highest burden. It must still prove, to the reasonable-doubt standard, both that the accused had the required criminal intent and that the accused took conduct that the law recognizes as an attempt.
The specific intent required by desertion
Desertion under Article 85 is a specific intent offense. This is what separates it from the lesser offense of absence without leave under Article 86, which is a general intent offense. To prove desertion, the government must establish the accused’s specific intent, most commonly the intent to remain away from the unit or place of duty permanently. Article 85 also reaches other specific intents, such as the intent to avoid hazardous duty or to shirk important service, but the permanent-departure theory is the classic form.
For attempted desertion, that specific intent is indispensable. Article 80 requires a specific intent to commit the underlying offense, and the underlying offense of desertion itself requires a specific intent. The prosecution must therefore prove, beyond a reasonable doubt, that the accused acted with the specific intent that desertion demands, for example the intent to remain away permanently. Without proof of that mental state, the offense is at most attempted unauthorized absence, not attempted desertion.
Proving intent is usually circumstantial
Intent is rarely proven by a confession of purpose. Cases in which an accused openly announces an intent never to return are the exception. Far more often, the government proves the specific intent to desert through circumstantial evidence, such as the accused’s actions, conduct, statements, the length and manner of the absence, disposal of uniforms or military identification, attempts to obtain civilian employment or documents, or steps to relocate far from the unit. The factfinder may infer the required intent from this circumstantial picture, but the inference must still be strong enough to establish intent beyond a reasonable doubt.
The attempt elements under Article 80
Because the charge is attempted desertion, the government must also satisfy the attempt framework. Under Article 80, an attempt requires the specific intent to commit the offense, an overt act, and that the act amount to more than mere preparation, tending to effect the commission of the offense even though it fails. Military law applies a substantial step analysis: the act must be a substantial step toward committing the offense, going beyond planning or arranging.
In the attempted desertion context, this means the government must prove beyond a reasonable doubt that the accused, intending to desert, took a substantial step toward doing so, and that the desertion was not completed, often because of some intervening circumstance that prevented it. Mere thoughts or remote preparation are not enough. The conduct must have crossed the line from preparation into a genuine effort to bring about the desertion.
Putting the burden together
To convict an accused of attempted desertion, the prosecution must prove, each beyond a reasonable doubt, that the accused harbored the specific intent required for desertion, such as the intent to remain away permanently; that the accused committed an overt act constituting a substantial step toward deserting; that the act went beyond mere preparation and tended to effect the desertion; and that the desertion was not actually completed. The reasonable-doubt standard attaches to every one of these elements, including the contested mental state, which the government will typically build from circumstantial evidence.
Why this burden favors a careful defense
The combination of a specific intent requirement and a high standard of proof gives the defense meaningful room to contest attempted desertion. The intent element is frequently the weakest link for the prosecution, because circumstantial evidence of an intent to leave permanently may be ambiguous, consistent with a mere intent to be temporarily absent, or otherwise insufficient to exclude reasonable doubt. The substantial step element offers a second line of defense, because conduct that looks like preparation rather than a true step toward desertion will not support the attempt. A service member facing this charge should examine both elements closely with a military defense attorney.
Summary
When prosecuting attempted desertion under Article 85, read together with Article 80, the government bears the burden of proving every element beyond a reasonable doubt. The elements are the specific intent that desertion requires, typically the intent to remain away permanently, and an overt act amounting to a substantial step beyond mere preparation toward that desertion that was not completed. The intent element, usually proven circumstantially, and the substantial step element are the two pressure points where the demanding criminal standard most often determines the outcome.
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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