Article 85 Desertion
Article 85 covers desertion with intent to permanently leave the armed
forces, with intent to shirk critical service, or avoid high risk duty,
before notice is given of acceptance of resignation and attempt to desert.
Desertion is an intent based crime. Whether or not the accused has actually
committed desertion, he can be found guilty of violating this article.
To gather evidence of intent to desert, the prosecution may present for
consideration the length of absence, statements made, or actions of the
accused and also how the absence was terminated. Although long absence
alone is not sufficient proof of intent to desert, it may become so if
other circumstantial evidence also indicates an intent to desert.
The next four sections cover 4 variations the prosecutor can charge a service
member with a violation of Article 85 of the UCMJ. All 4 variations list
the elements of each specific violation that the prosecutor must prove
in order to find a service member guilty of the alleged crime.
I) Desertion with the intention of staying permanently away:
- The accused remained absent from his unit/ place of duty without authorization
from a superior.
- That he remained absent with intent to stay away permanently.
Maximum Punishment: During war, this violation may be punished even with death. In times
of peace, maximum punishment is dishonorable discharge, confinement for
3 years, and forfeiture of all allowances and pay in event of termination
by apprehension. Otherwise, the maximum punishment is dishonorable discharge,
forfeiture of all allowances and pay, and 2 years confinement.
II) Desertion with the intention to avoid high risk or to shirk service:
- The accused remained absent from his unit without proper authorization.
- He did so to avoid a specific duty or service.
- The service/ duty was critical/ high risk.
- The accused was aware that he would be required and called upon for this
Maximum Punishment: During war, death or other lawful punishment is deemed maximum. During
peacetime, dishonorable discharge, forfeiture of allowances or pay, and
5 years confinement is maximum.
III): Desertion before receiving notice of acceptance of resignation:
The accused is an officer in the
US Army who has given in his resignation.
- That the accused absented himself from duties without leave before receiving
notice of his resignation being accepted.
- That the accused intended to remain absent permanently.
Maximum Punishment: In wartime, maximum punishment is death or other lawful punishment. Dismissal
and forfeiture of allowances and pay, 3 years confinement is maximum when
terminated by apprehension. Other kinds of termination shall result in
maximum punishment of dismissal, forfeiture of allowances and pay, and
2 years confinement.
IV) Attempt to Desert:
- The accused carried out a specific act that indicates attempt to desert.
- The intent behind the act was to avoid high risk duty or shirk critical service.
- The act was not merely preparation for the offense but a direct bid to
commit that offense.
- That the act would have resulted in desertion if unexpected events had
not intervened making desertion impossible.
Maximum Punishment: If the accused attempted desertion so that he could avoid risky duty or
critical service, he faces maximum punishment of dishonorable discharge,
forfeiture of all allowances and pay, confinement for 5 years. In other
cases of attempted desertion, the accused shall face maximum punishment
of dishonorable discharge forfeiture of all allowances and pay and 2 years
confinement. In time of war, death or other lawful punishment is deemed maximum.
To learn more about this punitive article refer to the Manual for Courts Martial.
Examples of Article 85 Violation
In the United States v. Mackey, 46 C.M.R. 754 (N.C.M.R. 1972) trial, the
accused was found absent when he was supposed to be with his unit in a
war zone. The absence extended over a period of 26 months after which
the accused was apprehended at a location quite a distance away from where
his unit was stationed. The accused was found guilty of intent to desert.