Article 85, UCMJ: Understanding Military Desertion and Its Consequences

Military desertion is a concept as old as organized armies themselves and remains one of the most serious offenses under the Uniform Code of Military Justice (UCMJ). Desertion involves a service member leaving their post or unit without authorization and with the intent to remain away permanently. This crime has been harshly punished throughout history, with documented executions for desertion as recently as World War II. Today, desertion under UCMJ Article 85 is still punishable by severe penalties, including imprisonment, dishonorable discharge, and forfeiture of pay.

At Kral Military Defense, an all-veteran law firm with extensive experience in every branch of the military, we are committed to providing aggressive and comprehensive legal representation for service members facing charges of desertion. Our goal is to protect your rights, career, and future.

What Constitutes Desertion Under UCMJ Article 85?

To be charged with desertion, the following elements must be proven:

Specific Intent: The accused must have demonstrated a deliberate intention to abandon their duties permanently.
Affirmative Actions: They must have taken clear steps to leave their post or unit without proper authorization.
Intent to Abandon: The accused must have acted against orders with the specific intention of leaving their duties permanently.

Desertion differs from lesser offenses like being Absent Without Leave (AWOL) or Unauthorized Absence (UA), which involve unauthorized absences without the intent to permanently abandon duties.

Desertion vs. AWOL

While both desertion and AWOL involve unauthorized absence, there are key distinctions:

AWOL: The service member leaves their post or unit without authorization but does not demonstrate intent to remain away permanently. Punishments for AWOL include confinement, forfeiture of pay, or reduction in rank.
Desertion: The service member leaves their post with clear intent to permanently abandon their duties or avoid military service. This is a much more serious offense, punishable by imprisonment, dishonorable discharge, and forfeiture of pay and allowances.

The distinction between AWOL and desertion can often be nuanced, and the specific facts of the case play a critical role in determining the charges.

Categories of Desertion

Under UCMJ Article 85, desertion can be categorized into three types:

Desertion Prior to the Start of a Military Operation
- Occurs when a service member leaves their unit before the start of a military operation with the intent to remain away permanently.
- The government must prove both the intent to desert and the planned deployment of the unit.
Desertion During a Military Operation
- Involves leaving a post or unit during active military engagement with the intent to remain away permanently.
- This is considered one of the most severe forms of desertion due to the potential impact on the mission and fellow service members.
Desertion With Aggravating Circumstances
- The service member’s absence resulted in significant harm to fellow service members, the mission, or national security.
- May involve violence, coercion, or other exacerbating factors.

Punishments for Desertion

The penalties for desertion depend on the specific circumstances and severity of the offense:

Maximum Penalties:

Dishonorable Discharge: Permanent separation from the military with a significant stain on one’s record.
Forfeiture of Pay and Allowances: Loss of current and future military benefits.
Confinement: Prison sentences ranging from months to life imprisonment.

Defending Against Desertion Charges

Facing desertion charges can be overwhelming, but a strong legal defense can make a critical difference. Common defense strategies include:

Challenging Intent: Demonstrating that the accused did not have the requisite intent to permanently abandon their duties.
Proving Mitigating Circumstances: Highlighting extenuating factors, such as medical issues, personal crises, or miscommunication.
Disputing Evidence: Questioning the validity or accuracy of the evidence presented by the prosecution.
Demonstrating an Unintentional Absence: Proving the accused’s absence was accidental or unintentional, rather than deliberate.

How Kral Military Defense Can Help

At Kral Military Defense, we provide experienced and personalized representation for service members facing charges of desertion or AWOL. Our team will:

Analyze Your Case: Review the evidence and identify potential weaknesses in the prosecution’s arguments.
Develop a Tailored Defense Strategy: Explore all possible defenses to minimize the impact of charges on your career and future.
Advocate Aggressively: Represent you in military proceedings to ensure your rights are protected.

Contact Kral Military Defense Today

Desertion charges under Article 85, UCMJ carry severe consequences, but you don’t have to face them alone. At Kral Military Defense, we are committed to defending those who serve our nation with the expertise and dedication they deserve. Contact us today to schedule a consultation and learn how we can help protect your rights, career, and future.

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