UCMJ Article 85: Desertion
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Desertion is unauthorized absence plus a specific intent: to remain away permanently, or to avoid hazardous duty or shirk important service. A long absence alone does not prove that intent. In peacetime the maximum is a dishonorable discharge and 5 years for avoiding hazardous duty, 3 years for other desertion ended by apprehension, and 2 years otherwise; in time of war, death is authorized.
Four forms of desertion in § 885
10 U.S.C. § 885 defines desertion in three forms in subsection (a) and one in subsection (b):
- going or remaining absent without authority with intent to remain away permanently;
- quitting a unit, organization, or place of duty with intent to avoid hazardous duty or shirk important service;
- enlisting or accepting an appointment in the same or another armed force, without having been regularly separated and without fully disclosing that fact, or entering a foreign armed service without authorization; and
- for a commissioned officer, quitting a post after tendering a resignation and before notice of its acceptance, with intent to remain away permanently.
Under § 885(c), desertion or attempted desertion in time of war is punishable by death or other punishment; at any other time, by any punishment other than death.
Intent to remain away permanently
The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 9.c(1), sets out how this intent works:
- Timing. It may be formed at any time during the absence and need not last the whole time.
- Complete when formed. “A prompt repentance and return, while material in extenuation, is no defense.”
- Other service is no excuse. If the accused intended to stay away permanently from the unit, it is no defense that the accused also meant to report for duty elsewhere or to join another armed force.
The Manual lists circumstances from which the intent may be inferred: a lengthy absence; disposing of uniforms or military property; buying a ticket to a distant point, or being found far from station; not surrendering when it would have been convenient; dissatisfaction with the unit or service; remarks about deserting; being under charges or having escaped confinement; financial or other preparations not to return; or enlisting elsewhere without disclosure. Circumstances that may cut against it include long and excellent prior service, leaving valuable property behind, and being under the influence of alcohol or drugs during the absence.
Two limits protect the accused. Personnel records that administratively label someone a “deserter” “are not evidence of intent to desert.” And: “Proof of, or a plea of guilty to, an unauthorized absence, even of extended duration, does not, without more, prove guilt of desertion” (¶ 9.c(1)(c)(iv)-(v)).
The enlistment clause, § 885(a)(3), “does not state a separate offense”; it is a rule of evidence from which intent may be inferred. Serving under an undisclosed new enlistment is not a return to military control and does not end the earlier absence unless the facts are known to military authorities (¶ 9.c(1)(d)).
Hazardous duty and important service
Examples of hazardous duty or important service include duty in a combat or other dangerous area, embarkation for foreign or sea duty, movement to a port of embarkation, and riot duty or aid to civil authorities in a disaster. Drill, target practice, maneuvers, and practice marches are not ordinarily included. Whether a duty qualifies is a question of fact, and the accused must have actually known of it (¶ 9.c(2)).
How the absence ended changes the maximum
From ¶ 9.d:
| Offense | Maximum |
|---|---|
| Completed or attempted desertion to avoid hazardous duty or shirk important service | Dishonorable discharge, forfeiture of all pay and allowances, 5 years |
| Other desertion, ended by apprehension | Dishonorable discharge, forfeiture of all pay and allowances, 3 years |
| Other desertion, ended otherwise | Dishonorable discharge, forfeiture of all pay and allowances, 2 years |
| In time of war | Death or such other punishment as a court-martial may direct |
How the absence ends matters: voluntary return, rather than apprehension, lowers the ceiling for desertion with intent to remain away from 3 years to 2. Attempted desertion is charged under Article 85 itself and carries the same maximums; once the attempt is made, desisting does not cancel it (¶ 9.c(3)).
Time limits
Desertion in time of war is punishable by death, and under 10 U.S.C. § 843(a) any offense punishable by death may be tried at any time. For peacetime desertion the general five-year limit applies, but § 843(c) provides: “Periods in which the accused is absent without authority or fleeing from justice shall be excluded in computing the period of limitation prescribed in this section (article).” The clock does not run while the deserter is still gone.
Absence without leave
If the intent element is not proved, the conduct is absence without leave under Article 86, with lower maximums tied to the length of the absence. Missing the movement of a ship, aircraft, or unit is a separate offense under Article 87.
Sources
- 10 U.S.C. § 885, Article 85, Desertion (Cornell LII)
- 10 U.S.C. § 843, Article 43, Statute of limitations (Cornell LII)
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 9
General information about military law, not legal advice for any individual case.