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Punitive Articles of the UCMJ

Article 85—Desertion

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Sgt. Camilo Mejia Found Guilty Of Desertion
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Text.

“(a) Any member of the armed forces who—

    (1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom 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 enters any foreign armed service except when authorized by the United States Note: This provision has been held not to state a separate offense by the United States Court of Military Appeals in United States v. Huff, 7 U.S.C.M.A. 247, 22 C.M.R. 37 (1956), is guilty of desertion.

(b) Any commissioned officer of the armed forces who, 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 therefrom permanently is guilty of desertion.

(c) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment, other than death, as a court-martial may direct.”

Guide Note: The offense of Desertion, under Article 85, carries a much greater punishment, than the offense of AWOL, under Article 86. Many people believe that if one is absent without authority for greater than 30 days, the offense changes from AWOL to Desertion, but that's not quite true.

The primary difference between the two offenses is "intent to remain away permanently." If one intends to return to "military control," one is guilty of "AWOL," under Article 86, not Desertion, under Article 85, even if they were away for ten years. The confusion derives from the fact that, if a member is absent without authority for longer than 30 days, the government (court-martial) is allowed to assume there was no intent to return. Therefore, the burden of proof that the accused intended to someday return to "military control" lies with the defense.

A person who is absent for just a day or two, then apprehended, could still be charged with the offense of Desertion, but the prosecution would have to show evidence that the accused intended to remain away permanently.

Elements.

(1) Desertion with intent to remain away permanently.

    (a) That the accused absented himself or herself from his or her unit, organization, or place of duty;

    (b) That such absence was without authority;

    (c) That the accused, at the time the absence began or at some time during the absence, intended to remain away from his or her unit, organization, or place of duty permanently; and

    (d) That the accused remained absent until the date alleged. Note: If the absence was terminated by apprehension, add the following element

    (e) That the accused’s absence was terminated by apprehension.

(2) Desertion with intent to avoid hazardous duty or to shirk important service.

    (a) That the accused quit his or her unit, organization, or other place of duty;

    (b) That the accused did so with the intent to avoid a certain duty or shirk a certain service;

    (c) That the duty to be performed was hazardous or the service important;

    (d) That the accused knew that he or she would be required for such duty or service; and

    (e) That the accused remained absent until the date alleged.

(3) Desertion before notice of acceptance of resignation.

    (a) That the accused was a commissioned officer of an armed force of the United States, and had tendered his or her resignation;

    (b) That before he or she received notice of the acceptance of the resignation, the accused quit his or her post or proper duties;

    (c) That the accused did so with the intent to remain away permanently from his or her post or proper duties; and

    (d) That the accused remained absent until the date alleged. Note: If the absence was terminated by apprehension, add the following element

    (e) That the accused’s absence was terminated by apprehension.

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