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:

Elements:

• 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:

Elements:

• 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 duty/ service.

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:

Elements:

• 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:

Elements:

• 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.