UCMJ Article 85: Desertion

Military desertion is a concept as old as organized armies themselves. It is one that is taken extremely seriously by the authorities. “Desertion” refers to the act of a service member leaving their post or unit without permission and with the intent to remain away permanently. There are documented cases of desertion from United States military units dating back to the Revolutionary War. US soldiers have been executed on desertion charges as recently as World War II. Desertion is still considered an extremely serious offense under modern military codes. It remains punishable by harsh penalties such as imprisonment, dishonorable discharge, and forfeiture of pay.

Today, desertion is defined for United States military personnel under the Uniform Code of Military Justice (UCMJ) Article 85. This section of the UCMJ outlines the offense of desertion. It also specifies the circumstances under which a service member can be charged with it.

A service member must do the following to be charged with desertion:

• Demonstrate a specific intent to deliberately abandon their duties.
• Take affirmative steps to leave their post or unit without proper authorization.
• Act against their orders with the intention of abandoning their post, unit, or duties permanently.

If you are facing charges of desertion, it is essential to consult with a qualified attorney who has experience in military law.

In a desertion case, a skilled criminal defense attorney can assist the accused party in a variety of ways:

• Help you understand the charges against you.
• Explain the differences between military and civilian charges.
• Outline all the potential consequences.
• Challenge the evidence brought against you.
• Make the argument that you did not demonstrate a provable intent to desert your post.
• Explore all your legal options and use them to develop a powerful defense strategy.
• Protect your legal rights.
• Minimize the impact of desertion charges on your career and personal life.

Desertion vs. AWOL

Desertion and Absent Without Leave (AWOL) are two related but distinct offenses under military law. Both involve the unauthorized absence of a service member. However, there are important differences between the two charges.

AWOL, also sometimes called Unauthorized Absence (UA), refers to a situation where a service member is absent from their duty station or leaves their unit without proper authorization. However, they have not demonstrated a clear intent to abandon their duties permanently. In short, the service member left without permission, but they likely intend to return to their post or unit. Sneaking off base for a single evening to attend an unauthorized event would be an example of going AWOL. Depending on the length of the absence and the circumstances, AWOL can be punished in several ways, including:

• Confinement
• Forfeiture of pay
• Reduction in rank

Desertion also involves the unauthorized absence of a service member. However, they have already demonstrated a clear intention to leave the military and abandon their duties permanently, or at least indefinitely. To be charged with desertion, the accused service member must have taken affirmative steps to leave without obtaining proper authorization. Due to its permanent nature, desertion is a more serious offense than going AWOL or UA. It is punishable by severe penalties, including:

• Imprisonment
• Dishonorable discharge
• Forfeiture of pay and allowances

Each of these terms has a clear definition with distinct differences. However, the real-world, practical distinction between AWOL and desertion can be a fine line in many cases. For one, the exact circumstances of each case can vary greatly, even within the distinct categories of desertion and AWOL. Although military courts streamline many aspects of the civilian legal process, they cannot eliminate complexity and nuance.

What Is Considered Desertion in the Military?

Desertion is a serious offense under the Uniform Code of Military Justice (UCMJ). It is defined under UCMJ Article 85 as the unauthorized absence of a service member with the intent to remain away permanently in avoidance of their mandated service. To prove desertion, the government must show that the accused had a specific intent to abandon their duties with no intent to return. They must also demonstrate that they planned such an action and took affirmative steps to leave without proper authorization.

Under UCMJ Article 85, there are three specific categories of desertion. Each has different criteria for proving the offense and different potential consequences:

• Desertion Prior to the Start of a Military Operation: The accused flees their unit while that unit has been called to engage in a military operation and is preparing for said deployment. To prosecute this type of desertion, the government must show that the accused left their unit or post. They must also demonstrate the intent to remain away permanently when called to engage in a military operation.
• Desertion During a Military Operation: The accused left their post with the intent to remain away permanently while their unit was actively engaged in a military operation. This is one of the more serious offenses possible under the military code. However, due to the mental, physical, and emotional stresses of being involved in active military engagements, it has also unfortunately been a regular occurrence throughout history.
• Desertion With Aggravating Circumstances: In this type of desertion case, the government prosecutor must show that the accused left their unit with the intent to remain away permanently. The difference here is that they will also try to prove that the accused’s absence resulted in serious, demonstrable danger to their fellow service members or to the mission. They may also attempt to show that the accused employed violence or coercion while carrying out their desertion.

What Is the Punishment for Desertion?

Desertion in any of its forms is a serious offense under the Uniform Code of Military Justice (UCMJ). It is thus punishable by harsh penalties for United States service members. The severity of the punishment will depend on the particular circumstances of the offense and the type of desertion committed.

Some of the more common punishment mechanisms for deserters in the US military can include:

• Dishonorable discharge from military service (will affect your ability to access important benefits for veterans in the future)
• Forfeiture of pay and allowances (may be ordered as a partial forfeiture or may apply to your entire paycheck)
• Confinement/imprisonment

In the most severe cases, the maximum possible punishment will be:

• Dishonorable discharge
• Total forfeiture of all pay and allowances
• Confinement for life

In addition to criminal penalties, a service member convicted of desertion may also face significant indirect consequences. These include:

• Loss of veteran’s benefits
• Difficulty finding employment
• Damage to their reputation and future career prospects

Aaron Meyer Law Can Help

If you are facing charges of desertion (or AWOL), you should consult with the highly qualified team at Aaron Meyer Law. We have broad experience in military, civil, and criminal law. We can become your close partner as you move through the next steps of the process. These steps will include:

• Understanding the charges against you and their possible consequences
• Analyzing all available evidence
• Exploring the full range of legal tools and tactics at your disposal
• Building a strong defense strategy to protect your legal rights
• Taking that strategy to court and deploying it effectively
• Minimizing the impact of any charges on your career and personal life

For assistance with all the above, contact our offices for a no-judgment review of your case today.