Article 85: Desertion

There are three types of Unauthorized Absences –

• Article 85 governs the unauthorized absence offense of “Desertion”,
• Article 86 governs the unauthorized absence offense of “Absence Without Leave (AWOL),” and
• Article 87 governs the unauthorized absence offense of “Missing a Movement.”

Simply stated, Desertion exists when a servicemember is in an unauthorized absence status from their unit and chooses to remain away permanently, to avoid hazardous duty, or to shirk important service. Unlike being AWOL under Article 86 where the length of time in an AWOL status is the main issue, under Article 85 the key issue is whether the accused intended to “remain away permanently.” The legal determination of “intent to remain away permanently” “hazardous duty” and “important service” is based on the specific facts of each case.

Generally, “intent to remain away permanently” can be shown by the actions of the accused. For example, if an accused destroys his military ID, his/her uniforms, or moves to another country these could be indications that the accused intended to remain away permanently.

Although a finding of “intent to remain away permanently” generally focuses on the actions of the accused, a finding “of hazardous duty” and “important service” focuses on the actions of the unit. For example, a unit’s deployment to a combat zone is generally considered “hazardous duty” and “important duty.” On the other hand, duty that includes drill, training, and maneuvers are not generally considered “hazardous duty” or “important service.”

It should be noted that a servicemember can still be convicted of “desertion” even if the unit did not actually depart to engage in “hazardous duty” or “important service.” Moreover, the accused’s moral or ethical concern about the appropriateness of the duty or service is not a defense.

The difference between “Desertion” under Article 85 and “Missing a Movement” under Article 87 is that “Missing a Movement” does not require “intent to remain away permanently.” Rather “Missing a Movement” requires that the servicemember either deliberately or through neglect miss a military movement involving a particular ship, aircraft or unit. Additionally, “Missing a Movement” conviction requires that the movement actually occurred. The servicemembers physical inability to make the movement is a defense to the charge of “Missing a Movement.”

If you, or someone you know, is in an unauthorized absence status from the military and the absence is for more than 30 days, the person will automatically be declared a deserter and a federal warrant will be issued for the servicemember’s arrest. Consequently, no matter where the servicemember may be, if he or she is stopped by local law enforcement for something as minor as a simple traffic infraction, it will result in the person’s immediate apprehension and arrest until the servicemember can be returned to the military where the servicemember will likely be placed into pretrial confinement at the local brig while awaiting prosecution for Desertion.

In UA (Unauthorized Absence) and Desertion cases it is important to immediately consult with an experienced civilian military law attorney who understands the issues related to whether the servicemember formed the required intent to never return to their unit and how best to terminate their Unauthorized Absence or Desertion status.

If You Are in Unauthorized Absence (UA) or Desertion status, It Is Important to Voluntarily Return to Military Control

What most servicemembers do not realize is that if their UA (Unauthorized Absence) or Desertion status is terminated by apprehension, the servicemember is looking at a more serious sentence if found guilty of the UA or Desertion charge. Therefore, it is always recommended that a servicemember terminate their absence from the military by voluntarily returning to their unit, or alternatively, reporting to the nearest military installation, or local law enforcement agency.

Because there are many factors and issues related to the determination of whether a servicemember in UA or deserter status returned “voluntarily” or “involuntarily” to military control, it is important to immediately consult with an experienced civilian military law attorney who understands the issues and can help you navigate through them.

Having an Experienced Civilian Military Law Attorney On Your Side when facing Desertion Charges Is Very Important.

Since servicemembers generally go UA (Unauthorized Absence) or enter into a deserter status due to personal problems they may be experiencing within their family or personal life, it may be difficult for the servicemember to know how best to resolve the personal problem that caused them to go UA in the first place, and how best to resolve their current UA or deserter status with the military. What complicates the problem further is that the servicemember in a UA or deserter status is not entitled to representation by a detailed military defense attorney until they are returned to military control.

Therefore, it is important that the servicemember who falls into a UA or deserter status seek out an experienced civilian military law attorney who can represent the servicemember’s legal interests in both civilian and military jurisdictions. This is essential in resolving not only the servicemembers personal problems that may have led them to go UA, but is also important and invaluable when it comes to coordinating the servicemembers voluntary return to the military. This unique ability to have one attorney singlehandedly handle all of the servicemember’s legal problems within both the civilian and military jurisdictions is what ensures you will get a timely, complete and zealous representation in your individual case.