UCMJ Article 85: Desertion

The MCM states under Article 85 (Desertion), any service member may be prosecuted if they:

1. leave or remain absent from their unit, organization, or place of duty without authority and with the intent to stay away 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 entered any foreign armed service except when authorized by the United States.

Suppose the service member is a commissioned officer. In that case, they may be subject to prosecution under Article 85 if they “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 from that place permanently.” To prove the commissioned officer deserted before receiving notice of acceptance of their resignation, the prosecution must demonstrate:

1. the accused was a commissioned officer of an armed force of the United States and had tendered their resignation;

2. before they received notice of the acceptance of the resignation, the accused quit their post or proper duties;

3. the accused did so with the intent to remain away permanently from their post or proper duties and

4. The accused remained absent until the date alleged.

To be convicted of desertion, the prosecutor must prove beyond a reasonable doubt the accused was absent with the intent to remain away permanently by arguing with the accused:

1. absented themselves from their unit, organization, or place of duty;

2. that such absence was without authority;

3. such absence was without authority;

4. that the accused, at the time the absence began or at some time during the absence, intended to remain away from their unit, organization, or place of duty permanently; and

5. the accused remained absent until the date alleged.

The prosecution must also prove beyond a reasonable doubt that the service member deserted with the intent to avoid hazardous duty or to shirk important service by demonstrating:

1. the accused quit their unit, organization, or other place of duty;

2. the accused did so with the intent to avoid a specific duty or forget a particular service;

3. the duty to be performed was hazardous or the service necessary;

4. the accused knew that they would be required for such duty or service; and

5. the accused remained absent until the date alleged.

The service member may also be subject to Article 85 if they attempt desertion. To be prosecuted for attempted desertion, the prosecution must prove:

1. the accused did a specific overt act;

2. the act was done with the specific intent to desert;

3. the act amounted to more than mere preparation and

4. The act tended to effect the commission of the offense of desertion.

Understanding Article 85 (Desertion) of the UCMJ

Desertion is completed when the service member leaves their unit, organization, or place of duty without authority and intends to remain away permanently. Changing their mind and returning promptly is not a defense. The intent to stay away always at any time during the absence may be proven through the use of circumstantial evidence by the prosecution.

Maximum Possible Punishment for Violations of Article 85

Service members convicted of an Article 85 violation face a maximum punishment of dishonorable discharge, forfeiture of all pay and allowances, and forced

confinement of up to 5 years. If the offense occurred during war, death or an extended confinement sentence may be directed by a court-martial.

How do you defend against Article 85 Desertion charges?

When you are facing the combined resources of the military as well as the current cultural climate, you need to be prepared to defend your career and your freedom. Crisp and Associates, LLC has a team of experienced trial attorneys who have won these cases. This team includes the firm’s founder, Jonathan Crisp, a highly respected former Army JAG with over 23 years of experience in military law and a sought-after speaker and lecturer on martial law. Donald Gordon has litigated cases before the Discharge Review Board, the Board for Correction of Military Records, and the Board for Correction of Naval Records regarding various matters and a diverse background of clients.

If you or someone you know is facing Article 85 charges for Desertion, you need to speak with a Military defense attorney right away. Please call Crisp and Associates Military at 888-258-1653 for a free consultation.