Desertion:
(a) Any member of the armed forces who?
(1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently;
(2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or
(3) without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another one of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States Note: This provision has been held not to state a separate offense by the United States Court of Military Appeals in United States v. Huff, 7 U.S.C.M.A. 247, 22 C.M.R. 37 (1956), is guilty of desertion.
(b) Any commissioned officer of the armed forces who, after tender of his resignation and before notice of its acceptance, quits his post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion.
(c) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment, other than death, as a court-martial may direct.?
Guide Note: The offense of Desertion, under Article 85, carries a much greater punishment, than the offense of AWOL, under Article 861. Many people believe that if one is absent without authority for greater than 30 days, the offense changes from AWOL to Desertion, but that's not quite true.
The primary difference between the two offenses is "intent to remain away permanently." If one intends to return to "military control," one is guilty of "AWOL," under Article 86, not Desertion, under Article 85, even if they were away for ten years. The confusion derives from the fact that, if a member is absent without authority for longer than 30 days, the government (court-martial) is allowed to assume there was no intent to return. Therefore, the burden of proof that the accused intended to someday return to "military control" lies with the defense.
A person who is absent for just a day or two, then apprehended, could still be charged with the offense of Desertion, but the prosecution would have to show evidence that the accused intended to remain away permanently.
Elements.
(1) Desertion with intent to remain away permanently.
(a) That the accused absented himself or herself from his or her unit, organization, or place of duty;
(b) That such absence was without authority;
(c) That the accused, at the time the absence began or at some time during the absence, intended to remain away from his or her unit, organization, or place of duty permanently; and
(d) That the accused remained absent until the date alleged. Note: If the absence was terminated by apprehension, add the following element
(e) That the accused?s absence was terminated by apprehension.
(2) Desertion with intent to avoid hazardous duty or to shirk important service.
(a) That the accused quit his or her unit, organization, or other place of duty;
(b) That the accused did so with the intent to avoid a certain duty or shirk a certain service;
(c) That the duty to be performed was hazardous or the service important;
(d) That the accused knew that he or she would be required for such duty or service; and
(e) That the accused remained absent until the date alleged.
(3) Desertion before notice of acceptance of resignation.
(a) That the accused was a commissioned officer of an armed force of the United States, and had tendered his or her resignation;
(b) That before he or she received notice of the acceptance of the resignation, the accused quit his or her post or proper duties;
(c) That the accused did so with the intent to remain away permanently from his or her post or proper duties; and
(d) That the accused remained absent until the date alleged. Note: If the absence was terminated by apprehension, add the following element
(e) That the accused?s absence was terminated by apprehension.
4) Attempted desertion.
(a) That the accused did a certain overt act;
(b) That the act was done with the specific intent to desert;
(c) That the act amounted to more than mere preparation; and
(d) That the act apparently tended to effect the commission of the offense of desertion.
Explanation.
(1) Desertion with intent to remain away permanently.
(a) In general. Desertion with intent to remain away permanently is complete when the person absents himself or herself without authority from his or her unit, organization, or place of duty, with the intent to remain away therefrom permanently. A prompt repentance and return, while material in extenuation, is no defense. It is not necessary that the person be absent entirely from military jurisdiction and control.
(b) Absence without authority ?inception, duration, termination. See paragraph 10c1.
(c) Intent to remain away permanently.
(i) The intent to remain away permanently from the unit, organization, or place of duty may be formed any time during the unauthorized absence. The intent need not exist throughout the absence, or for any particular period of time, as long as it exists at some time during the absence.
(ii) The accused must have intended to remain away permanently from the unit, organization, or place of duty. When the accused had such an intent, it is no defense that the accused also intended to report for duty elsewhere, or to enlist or accept an appointment in the same or a different armed force.
(iii) The intent to remain away permanently may be established by circumstantial evidence. Among the circumstances from which an inference may be drawn that an accused intended to remain absent permanently or; that the period of absence was lengthy; that the accused attempted to, or did, dispose of uniforms or other military property; that the accused purchased a ticket for a distant point or was arrested, apprehended, or surrendered a considerable distance from the accused?s station; that the accused could have conveniently surrendered to military control but did not; that the accused was dissatisfied with the accused?s unit, ship, or with military service; that the accused made remarks indicating an intention to desert; that the accused was under charges or had escaped from confinement at the time of the absence; that the accused made preparations indicative of an intent not to return (for example, financial arrangements), or that the accused enlisted or accepted an appointment in the same or another armed force without disclosing the fact that the accused had not been regularly separated, or entered any foreign armed service without being authorized by the United States. On the other hand, the following are included in the circumstances which may tend to negate an inference that the accused intended to remain away permanently: previous long and excellent service; that the accused left valuable personal property in the unit or on the ship; or that the accused was under the influence of alcohol or drugs during the absence. These lists are illustrative only.
(iv) Entries on documents, such as personnel accountability records, which administratively refer to an accused as a ?deserter? are not evidence of intent to desert.
(v) Proof of, or a plea of guilty to, an unauthorized absence, even of extended duration, does not, without more, prove guilt of desertion.
(d) Effect of enlistment or appointment in the same or a different armed force. Article 85a(3) does not state a separate offense. Rather, it is a rule of evidence by which the prosecution may prove intent to remain away permanently. Proof of an enlistment or acceptance of an appointment in a service without disclosing a preexisting duty status in the same or a different service provides the basis from which an inference of intent to permanently remain away from the earlier unit, organization, or place of duty may be drawn. Furthermore, if a person, without being regularly separated from one of the armed forces, enlists or accepts an appointment in the same or another armed force, the person?s presence in the military service under such an enlistment or appointment is not a return to military control and does not terminate any desertion or absence without authority from the earlier unit or organization, unless the facts of the earlier period of service are known to military authorities. If a person, while in desertion, enlists or accepts an appointment in the same or another armed force, and deserts while serving the enlistment or appointment, the person may be tried and convicted for each desertion.
(2) Quitting unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service.a) Hazardous duty or important service. ?Hazardous duty? or ?important service? may include service such as duty in a combat or other dangerous area; embarkation for certain foreign or sea duty; movement to a port of embarkation for that purpose; entrainment for duty on the border or coast in time of war or threatened invasion or other disturbances; strike or riot duty; or employment in aid of the civil power in, for example, protecting property, or quelling or preventing disorder in times of great public disaster. Such services as drill, target practice, maneuvers, and practice marches are not ordinarily ?hazardous duty or important service.? Whether a duty is hazardous or a service is important depends upon the circumstances of the particular case, and is a question of fact for the court-martial to decide.
(b) Quits. ?Quits? in Article 85 means ?goes absent without authority.?
(c) Actual knowledge. Article 85 a(2) requires proof that the accused actually knew of the hazardous duty or important service. Actual knowledge may be proved by circumstantial evidence.
(3) Attempting to desert. Once the attempt is made, the fact that the person desists, voluntarily or otherwise, does not cancel the offense. The offense is complete, for example, if the person, intending to desert, hides in an empty freight car on a military reservation, intending to escape by being taken away in the car. Entering the car with the intent to desert is the overt act. For a more detailed discussion of attempts, see paragraph 41. For an explanation concerning intent to remain away permanently, see sub-paragraph 9c(1)(c).
(4) Prisoner with executed punitive discharge. A prisoner whose dismissal or dishonorable or bad-conduct discharge has been executed is not a ?member of the armed forces? within the meaning of Articles 85 or 86, although the prisoner may still be subject to military law under Article 2(a)(7)2. If the facts warrant, such a prisoner could be charged with escape from confinement under Article 953, or an offense under Article 1344.
Lesser ncluded offense.
Article 865?absence without leave
Maximum punishment.
(1) Completed or attempted desertion with intent to avoid hazardous duty or to shirk important service. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
(2) Other cases of completed or attempted desertion.
(a) Terminated by apprehension. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.
(b) Terminated otherwise. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.
(3) In time of war. Death or such other punishment as a court-martial may direct.
