Article 85 addresses desertion, one of the oldest and most serious offenses in military law. The article covers three forms: desertion with intent to remain away permanently, desertion with intent to avoid hazardous duty or important service, and desertion before notice of acceptance of resignation. What distinguishes desertion from unauthorized absence is the element of intent, specifically the purpose to remain away permanently or to shirk important duty. During wartime, desertion can carry the death penalty, making it one of the most severely punishable offenses under the UCMJ.
1. What legal elements distinguish desertion under Article 85 from absence without leave under Article 86?
The critical distinction is intent. AWOL under Article 86 requires only that the service member was absent without authority. Desertion under Article 85 requires the additional element of specific intent: either the intent to remain away permanently from the unit or place of duty, or the intent to avoid hazardous duty or shirk important service. A service member who is absent for an extended period without evidence of intent to remain away permanently may be charged with AWOL rather than desertion. The intent element makes desertion significantly harder to prove but carries far more severe penalties.
2. What are the different punishment tiers for desertion, including the potential for the death penalty during wartime?
Desertion carries graduated penalties based on the circumstances. In peacetime, the maximum punishment for desertion with intent to remain away permanently includes a dishonorable discharge, forfeiture of all pay and allowances, and confinement for up to three years if the service member is apprehended, or up to two years if the deserter voluntarily returns. Desertion with intent to avoid hazardous duty or shirk important service carries a maximum of five years’ confinement and a dishonorable discharge. During wartime, desertion can be punished by death or any lesser punishment as the court-martial may direct.
3. How does the prosecution prove the specific intent to remain away permanently or to avoid hazardous duty?
Intent is typically proven through circumstantial evidence. For intent to remain away permanently, prosecutors may present evidence such as the length of absence, disposal of military property, assumption of a new identity, establishment of a civilian life, statements to others about not returning, and failure to leave a forwarding address. For intent to avoid hazardous duty, evidence includes the timing of the absence relative to known upcoming deployments or dangerous assignments, statements by the accused about unwillingness to deploy, and patterns of behavior such as previous attempts to avoid similar duties.
4. What constitutes “termination” of desertion status, and how does voluntary return affect the charges and sentencing?
Desertion status terminates upon apprehension by military or civilian authorities, or upon the deserter’s voluntary surrender to military control. Voluntary return is a significant mitigating factor in sentencing because it demonstrates a willingness to resume military obligations. However, voluntary return does not eliminate the offense itself; the desertion was complete when the service member departed with the requisite intent. Apprehension by authorities, in contrast, may be viewed as an aggravating factor because it suggests the service member had no intention of returning on their own.
5. What defenses are most commonly raised in desertion cases, including duress, mental health conditions, and impossible conditions of service?
Common defenses include lack of intent to remain away permanently, which recharacterizes the offense as AWOL rather than desertion. Mental health defenses argue the accused lacked the capacity to form the required specific intent due to conditions such as severe depression, PTSD, or other psychological disorders. Duress and intolerable conditions of service may be raised when the accused left due to threats, abuse, or conditions that made remaining genuinely dangerous. The defense must show that the conditions were objectively severe and that proper channels for complaint were either exhausted or unavailable.
6. How does the military handle desertion cases involving service members who flee to foreign countries?
The military pursues foreign desertion cases through coordination with the host nation’s law enforcement and diplomatic channels. The Army Deserter Information Point and equivalent service programs maintain active files and coordinate apprehension efforts. In some cases, deserters are returned through extradition or apprehended upon re-entry to the United States. The passage of time does not extinguish liability for wartime desertion, which has no statute of limitations. Peacetime cases are subject to applicable limitations periods but remain active warrants until resolved.
7. What is the historical prosecution rate for desertion during recent conflicts compared to peacetime?
Desertion rates and prosecution patterns vary significantly between wartime and peacetime. During extended conflicts, desertion rates historically increase due to the stress of prolonged deployments, combat exposure, and personal hardship. However, actual prosecution rates for desertion have declined over the decades, with many cases resolved through administrative separation rather than court-martial. The military has increasingly preferred administrative disposition for desertion absent aggravating factors such as attempts to avoid combat deployment or very lengthy absences.
8. How does the deserter’s absence duration and the circumstances of apprehension influence sentencing outcomes?
Longer absences generally result in harsher sentences because they demonstrate a more entrenched intent to avoid military service and cause greater disruption to the unit. Apprehension by law enforcement, particularly after the deserter has established a civilian life under a different identity, is treated more severely than voluntary return. The circumstances during the absence also matter: a deserter who committed additional crimes while absent faces compounded liability. Conversely, a short absence followed by voluntary return, particularly when accompanied by evidence of a mental health crisis, typically results in more lenient treatment.
9. What is the process for dropping a service member from the rolls as a deserter, and what are the consequences?
After a service member has been absent without authority for 30 days, the unit commander may initiate the process to drop the individual from the rolls. This administrative action changes the service member’s status to deserter, triggers notification to law enforcement databases, and affects the individual’s pay and benefits. Being dropped from the rolls does not resolve the case; it creates a permanent record and an outstanding obligation to return to military control. The deserter status remains active until the individual is apprehended, returns voluntarily, or the case is otherwise resolved through administrative or legal channels.
10. How do military courts distinguish between desertion with intent to shirk important service and desertion with intent to remain away permanently?
These are distinct offenses with different evidentiary requirements. Intent to shirk important service focuses on the purpose of avoiding a specific hazardous duty or important service assignment, such as a combat deployment, hazardous training, or a critical mission. Intent to remain away permanently focuses on the general purpose of never returning to military service. A service member may intend to avoid a specific deployment without intending to leave the military forever, and vice versa. The prosecution’s charging decision depends on which intent the evidence best supports.
11. What role does the Army Deserter Information Point (ADIP) or equivalent service program play in tracking and processing deserters?
The ADIP and equivalent service programs serve as central clearinghouses for information about deserters. They maintain databases of deserter records, coordinate with law enforcement agencies for apprehension, process returning deserters, and provide guidance to commands on desertion case administration. When a deserter is located or returns, these programs facilitate the individual’s return to military control, coordinate legal and administrative processing, and ensure proper documentation. They also interface with the FBI’s National Crime Information Center to maintain active warrants.
12. How does a desertion conviction affect citizenship status, VA benefits, and the ability to own firearms?
A desertion conviction with a dishonorable discharge generally bars the individual from most VA benefits, including healthcare, disability compensation, and education benefits. Citizenship status for naturalized citizens could theoretically be affected if the desertion is connected to a finding of lack of attachment to the United States, though such cases are extremely rare. Under federal law, a felony-level conviction or dishonorable discharge restricts the right to possess firearms. Additionally, a desertion conviction creates a permanent federal criminal record that affects employment opportunities and professional licensing.
Closing
Desertion strikes at the core commitment every service member makes upon entering the military: the obligation to serve and to be present when needed. Article 85 reflects the gravity of that commitment by imposing severe penalties, including the possibility of capital punishment during wartime, for those who abandon their duty and their fellow service members.
Disclaimer: This article is provided for general informational and educational purposes only. It does not constitute legal advice, nor does it create an attorney-client relationship. Military law is complex and fact-specific. Any person facing charges or seeking guidance under the UCMJ should consult a qualified military defense attorney or legal assistance office.