UCMJ ARTICLE 85: DESERTION

Executive Summary

Key Takeaway: UCMJ Article 85 criminalizes desertion when a service member absents themselves from their unit or place of duty without authority with specific intent to remain away permanently, to avoid hazardous duty or shirk important service, or when an officer absents themselves before receiving notice of acceptance of their resignation. Desertion is fundamentally an intent-based offense distinct from unauthorized absence. The prosecution must prove not merely that the accused was absent, but that they possessed one of the specific intents enumerated in Article 85. For offenses committed before 27 December 2023, maximum punishment ranges from 2 to 5 years confinement in peacetime depending on type and termination method. For offenses on or after 27 December 2023, sentencing category limits apply. Death penalty remains possible in time of war.

What Article 85 Covers: Absence from unit or place of duty with intent to remain away permanently from military service, absence with intent to avoid hazardous duty or shirk important service when the member knew they would be required for that duty, officer absence after submitting resignation but before receiving notice of acceptance with intent to remain away permanently, attempted desertion where the service member takes substantial steps toward desertion with requisite intent, and any unauthorized absence coupled with specific desertion intent regardless of duration or distance traveled.

Critical Article 85 Elements:

• Desertion requires specific intent beyond mere unauthorized absence (general intent to be absent is insufficient without one of the Article 85-specific intents)
• Intent may be proven through circumstantial evidence including length of absence, statements made, manner of departure, distance traveled, actions during absence, and method of absence termination
• Desertion with intent to remain away permanently requires proof the accused intended never to return to military control (not merely to avoid specific duty or assignment)
• Desertion to avoid hazardous duty requires proof the accused knew of the specific duty and absented themselves with intent to avoid it (the duty must be hazardous or important service)
• Termination method affects maximum punishment (apprehension results in harsher maximum than voluntary return, demonstrating continued desertion intent versus abandonment of that intent)

 

Why Article 85 Cases Present Unique Challenges: Intent must be inferred from circumstantial evidence as direct admissions of desertion intent are rare, distinguishing desertion from mere unauthorized absence depends on subtle proof of specific mental state, length of absence alone is legally insufficient to prove desertion intent though it provides circumstantial support, statements made during absence may be ambiguous or subject to multiple interpretations, and defense must carefully evaluate whether evidence supports desertion or only the lesser included offense of unauthorized absence under Article 86.

Immediate Steps if Under Investigation: Exercise your right to remain silent under Article 31(b) if questioned about an absence or your intentions during an absence, do not attempt to explain your state of mind or reasons for absence without defense counsel present as explanations often establish the specific intent element, preserve all communications and documentation from the period of absence that may demonstrate innocent purposes or lack of desertion intent, do not discuss your absence or intentions with other service members or potential witnesses, and consult with experienced military defense counsel immediately before providing any statement about your absence or mental state.

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Understanding UCMJ Article 85

Article 85 of the Uniform Code of Military Justice addresses desertion. This provision allows prosecution when a service member absents themselves from their unit or place of duty without authority and possesses one of several specific intents that elevate the absence from simple unauthorized absence to the more serious offense of desertion.

The policy behind Article 85 recognizes that certain absences pose greater threats to military discipline and effectiveness than others. An absence coupled with intent to permanently leave military service, to avoid hazardous duty, or to shirk important service undermines unit readiness, mission capability, and the mutual reliance service members place on one another. The statute targets these aggravated absences through enhanced maximum punishments and the stigma of desertion.

Desertion cases present unique challenges because they turn on proof of the accused's mental state during absence. Unlike many military offenses where the prohibited act itself is clear, desertion requires prosecutors to prove not only that the accused was absent without authority, but also that they possessed specific intent that distinguishes desertion from unauthorized absence. This intent is typically established through circumstantial evidence.

Desertion Distinguished From Unauthorized Absence

Understanding the distinction between desertion under Article 85 and unauthorized absence under Article 86 is critical:

Unauthorized Absence (Article 86):

• Service member absents themselves from unit, place of duty, or appointed place without authority
• No specific intent beyond intending to be absent is required
• Maximum punishment varies by duration and termination method: 30 days confinement for absences under 30 days; for absences between 3 and 30 days, confinement for 6 months; for absences over 30 days, bad conduct discharge, forfeiture of all pay and allowances, and confinement for 18 months if terminated by apprehension or 12 months for other termination methods
• Lesser included offense of all desertion charges

Desertion (Article 85):

• Service member absents themselves AND possesses one of several specific intents
• Specific intent must be proven beyond reasonable doubt
• Maximum punishment: For offenses before 27 December 2023, ranges from 2 to 5 years confinement in peacetime depending on circumstances; for offenses on or after 27 December 2023, subject to sentencing category limits; death penalty possible in wartime
• Carries greater stigma and more severe consequences

The difference is entirely in the accused's mental state. The same physical act (being absent without authority) may constitute either unauthorized absence or desertion depending on what the accused intended.

Types of Desertion Under Article 85

Article 85 criminalizes four distinct forms of desertion, each with specific elements:

Desertion With Intent to Remain Away Permanently

This is the classic form of desertion. The accused absents themselves intending never to return to military control.

Elements:

1. The accused absented themselves from their unit, organization, or place of duty
2. The absence was without authority from proper authority
3. The accused intended to remain away permanently

Intent requirement:

The accused must have intended to sever their connection with military service permanently. Temporary intentions to avoid specific duties, assignments, or situations are insufficient. The intent must be to abandon military service entirely.

Proving permanent intent:

Circumstantial evidence commonly used to establish permanent intent includes:

• Length of absence (while not alone sufficient, extended absences support inference of permanent intent)
• Distance traveled from unit or duty location
• Statements made before, during, or after absence about not returning
• Actions demonstrating civilian life establishment (employment, residence, marriage)
• Disguise or use of false identity to avoid detection
• Absence of attempts to contact unit or resolve status
• Method of termination (apprehension suggests continued intent; voluntary return negates it)

Maximum punishment:

• For offenses before 27 December 2023: If terminated by apprehension, dishonorable discharge, total forfeiture of pay and allowances, reduction to E-1, confinement for 3 years; if terminated by other means (voluntary return), dishonorable discharge, total forfeiture of pay and allowances, reduction to E-1, confinement for 2 years
• For offenses on or after 27 December 2023: Subject to applicable sentencing category limits under Executive Order 14103
• In time of war: Death or such other punishment as a court-martial may direct

Desertion With Intent to Avoid Hazardous Duty or Shirk Important Service

This form of desertion targets absences motivated by desire to avoid specific dangerous or critical duties.

Elements:

1. The accused absented themselves from their unit, organization, or place of duty
2. The absence was without authority
3. The accused intended to avoid hazardous duty or shirk important service
4. The accused knew they would be required to perform the duty or service

Hazardous duty:

Hazardous duty includes duty involving physical danger or hardship beyond normal military service. Examples include combat operations, deployments to combat zones, missions involving risk of enemy fire, airborne operations, and duties involving explosives or other dangerous materials.

Important service:

Important service includes significant military duties essential to mission accomplishment, even if not physically dangerous. Examples include critical training, inspections, alerts, or other duties where the member's presence is essential.

Knowledge requirement:

The accused must have known they would be required for the specific hazardous duty or important service. General awareness that hazardous duties exist is insufficient. The accused must have known of the specific duty they sought to avoid.

Proving intent to avoid:

Evidence commonly used includes:

• Timing of absence (immediately before scheduled hazardous duty)
• Statements expressing unwillingness to perform the duty
• Prior attempts to be excused from the duty
• Return after the hazardous duty or service concluded
• Absence of other apparent motives for the absence

Maximum punishment:

• For offenses before 27 December 2023: Dishonorable discharge, total forfeiture of pay and allowances, reduction to E-1, confinement for 5 years
• For offenses on or after 27 December 2023: Subject to applicable sentencing category limits under Executive Order 14103
• In time of war: Death or such other punishment as a court-martial may direct

Desertion by Officer Before Notice of Acceptance of Resignation

This provision applies specifically to officers who submit resignations and then absent themselves before receiving official notification that their resignation has been accepted.

Elements:

1. The accused was a commissioned or warrant officer
2. The accused submitted a resignation
3. The accused absented themselves from their unit, organization, or place of duty
4. The absence occurred before the accused received notice of acceptance of the resignation
5. The absence was without authority
6. The accused intended to remain away permanently

Policy rationale:

Officers remain subject to military authority and obligations until their resignations are officially accepted. Absenting themselves before acceptance undermines good order and discipline and may leave units without critical leadership.

Acceptance of resignation:

Official notification of acceptance is required. Mere submission of resignation does not terminate military status or obligations. The accused must remain present and perform duties until receiving formal notice of acceptance.

Maximum punishment:

• For offenses before 27 December 2023: If terminated by apprehension, dismissal, total forfeiture of pay and allowances, confinement for 3 years; if terminated by other means, dismissal, total forfeiture of pay and allowances, confinement for 2 years
• For offenses on or after 27 December 2023: Subject to applicable sentencing category limits under Executive Order 14103
• In time of war: Death or such other punishment as a court-martial may direct

Attempted Desertion

Article 85 also criminalizes attempts to desert even when the desertion is not completed.

Elements:

1. The accused did a certain overt act
2. The act was done with specific intent to commit desertion (with any of the Article 85 intents)
3. The act amounted to more than mere preparation
4. The act was a direct movement toward commission of desertion
5. The accused apparently had the ability to commit the offense of desertion

Substantial step requirement:

Mere preparation is insufficient. The accused must have taken action that constitutes a direct movement toward desertion. Examples of substantial steps include purchasing transportation away from duty location, packing belongings in preparation for permanent departure, and making detailed plans demonstrating desertion intent.

Impossibility:

Factual impossibility (circumstances preventing completion) does not negate attempt liability. Legal impossibility (what was attempted is not actually a crime) may provide a defense.

Maximum punishment:

• For offenses before 27 December 2023: For attempted desertion to avoid hazardous duty or shirk important service, dishonorable discharge, total forfeiture of pay and allowances, reduction to E-1, confinement for 5 years; for other attempted desertion, dishonorable discharge, total forfeiture of pay and allowances, reduction to E-1, confinement for 2 years
• For offenses on or after 27 December 2023: Subject to applicable sentencing category limits under Executive Order 14103
• In time of war: Death or such other punishment as a court-martial may direct

Proving Desertion Intent Through Circumstantial Evidence

Because direct evidence of desertion intent is rare, prosecutors typically rely on circumstantial evidence to establish the accused's mental state:

Length of Absence

While length of absence alone is legally insufficient to prove desertion, it provides important circumstantial evidence. Very short absences rarely support desertion findings absent other strong evidence of permanent intent or intent to avoid specific duty. Extended absences of months or years create stronger inferences, particularly when coupled with other evidence.

Statements

Statements made by the accused before, during, or after the absence carry significant weight:

• Pre-absence statements: "I'm never coming back" or "I'm not going on this deployment"
• During-absence statements: Telling others of intention to remain away or avoid service
• Post-apprehension statements: Explanations that acknowledge desertion intent or provide innocent alternatives

Context matters. Statements made in anger or frustration may be explained as venting rather than genuine expressions of intent. Statements to law enforcement or investigators receive greater weight than casual remarks to friends.

Manner and Circumstances of Departure

How the accused left provides insight into intent:

• Departing with all belongings suggests permanent intent
• Leaving personal items suggests temporary absence
• Taking steps to avoid detection (disguise, false identity) suggests desertion
• Open departure with notice suggests lesser culpability

Distance Traveled

Distance from unit or duty location provides circumstantial evidence. Traveling across country or to foreign nations suggests greater intent to remain away than remaining in the local area. However, distance alone is not determinative.

Actions During Absence

Conduct during absence demonstrates intent:

• Establishing civilian residence and employment suggests permanent intent
• Marrying or having children during absence suggests permanent civilian life
• Using false identity or concealing military status suggests desertion
• Making no attempts to contact unit or resolve status suggests permanent intent
• Actions consistent with temporary absence (remaining in area, maintaining contact) negate desertion

Method of Termination

How the absence ended carries significant legal weight:

Termination by apprehension: When military or civilian authorities apprehend the accused against their will, this suggests the accused maintained desertion intent throughout. Maximum punishment is correspondingly higher.

Voluntary return: When the accused voluntarily returns to military control, this demonstrates abandonment of desertion intent. Maximum punishment is lower, and voluntary return may support defense that desertion intent never existed or was abandoned.

Surrender to civilian authorities: Turning oneself in to civilian police creates questions about whether this constitutes voluntary return or constructive apprehension.

Responses to Recall Efforts

How the accused responded to unit efforts to contact them:

• Ignoring recall orders suggests desertion
• Responding with excuses suggests absence without intent to desert
• Fleeing when approached suggests desertion
• Expressing willingness to return negates permanent intent

Maximum Punishment Under Article 85

Important Note on Sentencing Reform: For offenses committed on or after 27 December 2023, maximum punishments are subject to the sentencing parameters established by Executive Order 14103. Under this framework, many Article 85 violations fall into sentencing categories with maximum confinement limits (often 36 months) regardless of the specific type of desertion. The traditional maximum punishments listed below apply to offenses committed before 27 December 2023. For offenses committed on or after that date, consult with defense counsel regarding applicable category-based sentencing limits. The death penalty authorization for wartime desertion remains unchanged under federal law.

Article 85 violations carry severe maximum penalties that vary based on the type of desertion and circumstances:

Peacetime Maximum Punishments (Pre-27 December 2023)

Desertion with intent to remain away permanently:

• Terminated by apprehension: Dishonorable discharge, total forfeiture of all pay and allowances, reduction to E-1, confinement for 3 years
• Terminated by other means: Dishonorable discharge, total forfeiture of all pay and allowances, reduction to E-1, confinement for 2 years

Desertion to avoid hazardous duty or shirk important service:

• Dishonorable discharge, total forfeiture of all pay and allowances, reduction to E-1, confinement for 5 years

Desertion by officer before notice of resignation acceptance:

• Terminated by apprehension: Dismissal, total forfeiture of all pay and allowances, confinement for 3 years
• Terminated by other means: Dismissal, total forfeiture of all pay and allowances, confinement for 2 years

Attempted desertion:

• Attempted desertion to avoid hazardous duty or shirk important service: Dishonorable discharge, total forfeiture of all pay and allowances, reduction to E-1, confinement for 5 years
• Other attempted desertion: Dishonorable discharge, total forfeiture of all pay and allowances, reduction to E-1, confinement for 2 years

Wartime Maximum Punishments

In time of war, all forms of desertion may be punished by death or such other punishment as a court-martial may direct. This reflects the heightened seriousness of desertion during armed conflict when unit cohesion and readiness are critical to mission success and survival.

Actual Sentencing

Actual sentences depend on numerous factors:

• Circumstances of the desertion
• Length of absence
• Whether the accused voluntarily returned
• Impact on unit readiness
• The accused's service record
• Aggravating and mitigating factors
• Whether the desertion occurred during wartime or deployment
• For offenses on or after 27 December 2023, applicable sentencing category limits

Beyond court-martial sentences, desertion convictions create federal criminal records affecting security clearances, VA benefits eligibility, civilian employment opportunities, professional licensing, and other aspects of post-service life. Dishonorable discharge results in loss of veterans' benefits and carries significant social stigma.

If you are under investigation for desertion or have been charged under Article 85, contact Joseph L. Jordan at (888) 643-6254 immediately. Early legal intervention can significantly impact whether desertion charges are filed versus lesser unauthorized absence charges, and the ultimate outcome of your case.

Defenses to Article 85 Charges

Defending desertion charges requires challenging the specific intent element that distinguishes desertion from unauthorized absence:

Lack of Desertion Intent

If the accused lacked the specific intent required for desertion, only the lesser included offense of unauthorized absence can be sustained. Defense may establish:

• The accused intended to return after resolving personal emergency
• The absence was motivated by mental health crisis, not desertion intent
• The accused intended only temporary absence and circumstances prevented return
• The accused attempted to contact unit or resolve absence status
• Actions during absence are inconsistent with permanent departure
• The accused's statements reflect frustration rather than genuine desertion intent

Intent must be proven beyond reasonable doubt. If evidence equally supports desertion intent and lesser culpable mental states, the government has not met its burden.

No Knowledge of Hazardous Duty

For desertion to avoid hazardous duty, the accused must have known of the specific duty. Defense may establish:

• The accused was not informed of the hazardous duty
• Orders or warnings were not communicated to the accused
• The timing of absence predated knowledge of the specific duty
• The absence was motivated by factors unrelated to the duty

Duty Not Hazardous or Important

If the duty the accused allegedly sought to avoid was neither hazardous nor constituted important service, this element fails. Defense may establish:

• The duty involved routine tasks without unusual danger or importance
• Other personnel could perform the duty without impact on mission
• The characterization of the duty as hazardous or important is not supported

Voluntary Return Negates Permanent Intent

Voluntary return to military control demonstrates the accused abandoned any desertion intent:

• Turning oneself in to military or civilian authorities
• Returning to unit voluntarily after brief absence
• Taking steps to resolve status rather than continuing absence

Voluntary return may completely negate permanent intent, supporting defense that the accused never possessed desertion intent or abandoned it early in the absence.

Mental Health or Incapacity

If the accused lacked mental capacity to form desertion intent due to mental disease, defect, or severe stress:

• Diagnosed mental health conditions affecting judgment
• Documented psychological crisis at time of absence
• Evidence of impaired mental state during absence
• Expert testimony regarding mental capacity

Mental health issues may negate specific intent or provide mitigation even if they do not rise to the level of complete defense.

Advice of Counsel or Mistake of Law

If the accused reasonably believed they had authority to be absent based on legal advice or understanding:

• Reliance on advice from military legal assistance
• Reasonable but mistaken belief about leave status
• Confusion about orders or authority

Good faith mistakes of law rarely provide complete defense but may mitigate or support lesser findings.

Coercion or Duress

If the accused was compelled to absent themselves by threat of death or serious bodily harm:

• Credible threats to accused or family members
• Reasonable belief that remaining would result in harm
• No reasonable alternative to absence

Duress must be immediate and compelling. General fear of military service is insufficient.

Your Rights During Desertion Investigations

Service members under investigation for desertion retain important constitutional and statutory protections:

Article 31(b) Rights

Before any questioning regarding suspected offenses, you must receive warnings:

• You are suspected of an offense
• The nature of the suspected offense
• You have the right to remain silent
• Any statement may be used against you in court-martial or other proceedings

These warnings apply to all official questioning about offenses, regardless of custody.

Right to Counsel

You have the right to consult with defense counsel before and during questioning:

• Right to appointed military defense counsel at no cost
• Right to retain civilian counsel at your own expense
• Right to have counsel present during any questioning
• Right to stop questioning at any time to consult with counsel

Protection Against Self-Incrimination

You cannot be compelled to provide incriminating statements. Silence cannot be used as evidence of guilt. This protection applies throughout investigation and prosecution.

Fourth Amendment Protections

You are protected against unreasonable searches and seizures. Investigators must have proper authorization to search your belongings, quarters, electronic devices, or other property. Do not consent to searches without first consulting with defense counsel.

Special Considerations in Desertion Investigations

Desertion investigations present unique considerations:

Apprehension circumstances: How and where the accused was apprehended provides important evidence about intent. Flight from authorities suggests continued desertion intent. Peaceful apprehension at known address suggests lesser culpability.

Statements during apprehension: Statements made to apprehending authorities often become critical evidence. Anything said can be used to establish desertion intent. Exercise Article 31 rights immediately.

Investigation of absence period: Investigators examine what the accused did during absence to establish intent. Employment, residence, use of aliases, and other actions during absence demonstrate mental state.

Witness interviews: The accused's statements to friends, family, and others during absence will be investigated. These third-party accounts of the accused's statements and intentions become prosecution evidence.

Review of communications: Emails, text messages, social media, and other communications during absence are examined for evidence of desertion intent.

Unit impact evidence: Prosecutors may present evidence about how the absence affected unit readiness, particularly in desertion to avoid hazardous duty cases.

The Importance of Early Legal Consultation

Desertion cases often turn on statements made immediately upon apprehension or during initial investigation. Attempts to explain absence or demonstrate lack of desertion intent frequently provide the very evidence prosecutors use to establish specific intent.

Consulting with experienced military defense counsel at the earliest indication of investigation provides critical benefits:

Protection of rights: Counsel ensures Article 31(b) rights are properly invoked and respected, preventing statements that could establish desertion intent.

Mental health evaluation: Early counsel involvement allows mental health assessment that may demonstrate lack of capacity to form desertion intent or provide mitigation.

Evidence preservation: Counsel ensures evidence demonstrating innocent purposes or lack of desertion intent is preserved and documented.

Charging decisions: Early presentation of context showing lack of desertion intent may result in lesser unauthorized absence charges rather than desertion.

Voluntary return strategy: For service members considering return, counsel can negotiate surrender terms and present context demonstrating lack of desertion intent.

When You Should Contact Defense Counsel

Consult with military defense counsel immediately if:

• You are apprehended after an absence and questioned about your intent
• You are considering returning after an absence and want to understand legal consequences
• Command indicates you are under investigation for desertion
• You are questioned about statements you made during absence
• Investigators are interviewing your family, friends, or contacts about your absence
• You receive recall orders or other communications indicating desertion investigation
• You are absent and unsure of your legal status or options

The earlier you consult counsel, the better positioned you are to protect your rights and build an effective defense.

Why Choose Joseph L. Jordan for Article 85 Defense

Joseph L. Jordan is a former Army Judge Advocate with extensive experience prosecuting and defending courts-martial. As a former military prosecutor, he understands how the government establishes desertion intent through circumstantial evidence, distinguishes desertion from unauthorized absence, and argues for maximum punishment based on termination method and circumstances.

Our defense approach includes:

Intent analysis: We thoroughly analyze all evidence bearing on the accused's mental state to challenge desertion intent and support unauthorized absence findings.

Mental health evaluation: We coordinate mental health assessments to evaluate capacity to form desertion intent and identify mitigating factors.

Circumstantial evidence challenge: We systematically address each piece of circumstantial evidence, presenting alternative innocent explanations for conduct and statements.

Witness strategy: We interview third parties who can testify about the accused's statements and conduct demonstrating lack of desertion intent.

Sentencing advocacy: We present compelling mitigation focused on voluntary return, mental health factors, lack of unit impact, and positive service record.

We represent service members worldwide at every stage of desertion investigation and prosecution.

Immediate Steps if You Are Under Investigation

If you are being investigated for possible desertion:

Invoke your right to remain silent: Do not explain your absence, state of mind, or intentions without defense counsel present. State clearly: "I wish to exercise my right to remain silent under Article 31 and consult with defense counsel before answering questions."

Do not elaborate on circumstances: Any explanation of where you were, what you did, or what you thought during absence can be used to establish desertion intent. Wait for counsel.

Preserve evidence: Document any evidence demonstrating innocent purposes, mental health crisis, or factors negating desertion intent. Save communications demonstrating intent to return.

Do not contact potential witnesses: Do not discuss the absence or your mental state with friends, family, or others who may be interviewed by investigators.

Contact defense counsel immediately: Call (888) 643-6254 to speak with Joseph L. Jordan about your case. Early consultation protects your rights and strengthens your defense.

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Frequently Asked Questions About UCMJ Article 85

What is desertion under Article 85 of the UCMJ?

Desertion is unauthorized absence coupled with specific intent to remain away permanently, to avoid hazardous duty or shirk important service, or (for officers) absence before receiving notice of resignation acceptance. Desertion requires proof of specific intent beyond the general intent to be absent required for unauthorized absence under Article 86.

What is the difference between AWOL and desertion?

Unauthorized absence (AWOL) under Article 86 requires only proof the service member absented themselves without authority. Desertion under Article 85 requires proof of additional specific intent (permanent absence, avoiding hazardous duty, or officer absence before resignation acceptance). Desertion carries much harsher maximum punishment and greater stigma.

What elements must prosecutors prove for Article 85 conviction?

For desertion with intent to remain away permanently: (1) absence from unit or place of duty, (2) without authority, (3) with intent to remain away permanently. For desertion to avoid hazardous duty: (1) absence without authority, (2) intent to avoid hazardous duty or shirk important service, (3) knowledge the accused would be required for that duty. Additional elements apply for officer desertion and attempted desertion.

How do prosecutors prove desertion intent?

Intent is proven through circumstantial evidence including length of absence, distance traveled, statements made before/during/after absence, actions during absence (establishing civilian life, using false identity), method of termination (apprehension versus voluntary return), responses to recall efforts, and absence of attempts to contact unit or resolve status.

Is length of absence alone sufficient to prove desertion?

No. Length of absence alone is legally insufficient to prove desertion intent. However, extended absences provide circumstantial evidence supporting desertion when coupled with other evidence such as statements, distance traveled, or actions demonstrating permanent departure.

What is the maximum punishment for desertion?

For offenses before 27 December 2023, peacetime maximum punishment ranges from 2 to 5 years confinement depending on type of desertion and termination method, plus dishonorable discharge (or dismissal for officers) and total forfeitures. For offenses on or after 27 December 2023, sentencing category limits apply under Executive Order 14103. In time of war, death penalty is possible for all forms of desertion.

Does voluntary return affect desertion charges?

Yes, significantly. Voluntary return demonstrates abandonment of desertion intent and results in lower maximum punishment. More importantly, voluntary return may completely negate desertion intent, supporting defense that the accused never intended permanent absence or abandoned desertion intent early.

What is "hazardous duty" for desertion purposes?

Hazardous duty includes duty involving physical danger or hardship beyond normal military service, such as combat operations, deployments to combat zones, missions involving risk of enemy fire, airborne operations, and duties involving explosives or dangerous materials. The accused must have known of the specific hazardous duty they allegedly sought to avoid.

Can someone be convicted of both desertion and AWOL?

No. Unauthorized absence is a lesser included offense of desertion. If convicted of desertion, the accused cannot separately be convicted of unauthorized absence for the same absence period. However, if desertion cannot be proven, the accused may be convicted of the lesser included offense of unauthorized absence.

What are the main defenses to desertion charges?

Main defenses include lack of desertion intent (the accused intended to return or lacked permanent intent), no knowledge of hazardous duty (for duty avoidance desertion), duty not hazardous or important, voluntary return negates permanent intent, mental health crisis prevented formation of intent, mistake about authority to be absent, and coercion or duress.

How does mental health affect desertion cases?

Mental health conditions may negate the capacity to form desertion intent, provide complete defense if they rise to level of lack of mental responsibility, or provide significant mitigation even if they do not completely negate intent. Early mental health evaluation is critical in desertion defense.

What happens if an officer deserts before resignation acceptance?

Officers who submit resignations remain subject to military authority until receiving official notice of acceptance. Absenting themselves before acceptance with intent to remain away permanently constitutes desertion. Maximum punishment mirrors other desertion forms (3 years if apprehended, 2 years for voluntary return for pre-27 December 2023 offenses; sentencing category limits for later offenses; death possible in wartime).

Can someone be charged with attempted desertion?

Yes. Attempted desertion occurs when the accused takes substantial steps toward desertion with requisite intent, even if the desertion is not completed. Mere preparation is insufficient; the act must be a direct movement toward commission of desertion. Maximum punishment mirrors completed desertion.

Does desertion require traveling a certain distance?

No. Distance traveled provides circumstantial evidence of intent but is not an element of desertion. A service member can be convicted of desertion even if they remain in the local area, if other evidence establishes desertion intent. Conversely, traveling great distances does not alone prove desertion.

What should service members do if questioned about desertion?

Invoke Article 31(b) rights immediately. Do not attempt to explain absence, mental state, or intentions without defense counsel present. Any explanation of where you were, what you did, or what you intended can be used to establish desertion intent. Request defense counsel before making any statements.

How does apprehension versus voluntary return affect cases?

Apprehension suggests continued desertion intent throughout the absence and results in higher maximum punishment. Voluntary return demonstrates abandonment of desertion intent, results in lower maximum punishment, and provides powerful evidence the accused never intended permanent absence. The distinction significantly affects both charging decisions and sentencing.

How did sentencing reform affect Article 85 cases?

For offenses committed on or after 27 December 2023, Executive Order 14103 established category-based sentencing parameters. Many Article 85 violations now fall into categories with maximum confinement of 36 months regardless of specific desertion type. Traditional maximum punishments (2 to 5 years) apply only to offenses before that date. The death penalty for wartime desertion remains unchanged.

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For immediate consultation regarding Article 85 charges or investigations, contact Joseph L. Jordan at (888) 643-6254. Experienced military defense representation for service members worldwide.

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Important Notice: This information is provided for educational purposes and does not constitute legal advice. Every case involves unique facts requiring individualized legal analysis. Reading this information does not create an attorney-client relationship. For advice specific to your situation, consult with a qualified military defense attorney.