This article is part of a comprehensive series covering the punitive articles of the UCMJ (Uniform Code of Military Justice). It is intended for informational purposes only and does not constitute legal advice. Service members facing any UCMJ charge should consult a qualified military defense attorney.
A soldier walks off a forward operating base during a deployment rotation. He takes nothing with him, no personal gear, no identification, no plan to return. Three weeks later, civilian police pick him up 400 miles from the nearest military installation, working under an assumed name. He tells the arresting officer he is done with the Army.
That is desertion in its clearest form. But most cases under Article 85 of the UCMJ (10 U.S.C. § 885) are not that clean. A service member misses a reporting date after leave. Another fails to return from liberty, then turns herself in two months later. A third is absent for three days before his unit deploys, and the prosecution argues those three days prove he was running from a combat rotation. In every case, the question that separates Article 85 from Article 86 (absence without leave) is the same: what was in the accused’s mind?
Intent Is the Entire Case
Desertion is a specific intent offense. The Court of Military Appeals confirmed this in United States v. Holder, 22 C.M.R. 3 (C.M.A. 1956), and nothing about the doctrine has softened since. The physical act, being absent from one’s unit without authority, is identical whether the charge is desertion under Article 85 or unauthorized absence under Article 86. What makes it desertion is not how long the accused was gone, where they went, or what they did while absent. It is whether they intended to remain away permanently, or intended to avoid hazardous duty, or intended to shirk important service.
That intent can form at the moment of departure. But intent can also form during the absence: a service member who leaves intending to return but who later decides never to go back has committed desertion from the point that intent crystallized, even if the initial departure would have been nothing more than AWOL.
The prosecution proves intent through circumstantial evidence. The MCM (Part IV, Paragraph 9.c) identifies the factors military courts consider: how long the accused was absent, what statements the accused made before or during the absence, whether the accused disposed of military uniforms or equipment, whether the accused obtained civilian employment under a different name, whether the accused took steps to avoid detection, and how the absence ended, voluntarily or by apprehension.
None of these factors is conclusive on its own. Length of absence is relevant but not sufficient, the CAAF made this clear repeatedly. A three-week absence with strong circumstantial evidence of permanent intent can support desertion. A six-month absence with evidence suggesting the accused always planned to return may not. The factors work together, and the defense’s ability to explain any one of them can undermine the prosecution’s theory.
This is why United States v. Huet-Vaughn, 43 M.J. 105 (C.A.A.F. 1995), matters. The court held that evidence of the accused’s intent to return temporarily, even if the absence was prolonged, is relevant to the merits of a desertion case. And in United States v. Collins, 60 M.J. 261 (C.A.A.F. 2004), the court went further: evidence that the accused lacked the capacity to form the specific intent required for desertion, due to mental health conditions, cognitive impairment, or other factors, is also relevant and admissible.
Mental health has become an increasingly significant element in Article 85 defense. PTSD, traumatic brain injury, depression, and substance use disorders can all affect a service member’s capacity to form specific intent. The defense does not need to prove the accused was legally insane, only that the accused did not, or could not, form the intent to remain away permanently. This is a lower threshold, and it has changed how desertion cases are litigated.
Four Forms, One Statute
Article 85 does not describe a single offense. It describes four distinct forms of desertion, each with its own elements and its own intent requirement.
Absence with intent to remain away permanently
the form most people think of when they hear “desertion.” The elements under MCM 2024 (Part IV, Paragraph 9.b(1)) require: the accused absented from their unit, organization, or place of duty; the absence was without authority; the accused intended to remain away permanently at the time the absence began or at some point during the absence; and the accused remained absent until a certain date. If terminated by apprehension rather than voluntary return, that is an additional element, and an aggravating factor that increases maximum confinement.
Quitting to avoid hazardous duty or shirk important service
a form that does not require intent to leave permanently. The accused quit their unit with the specific intent to avoid a duty that was hazardous or a service that was important, and they knew they would be required for that duty or service. “Hazardous duty” means duty involving danger, risk, or peril. “Important service” includes deployment, combat operations, or other service of significant military value. This form carries the harshest peacetime punishment because it strikes at the core of military obligation.
Enlisting in another service without regular separation or entering foreign armed service
a form that applies when a service member, without being properly discharged, enlists or accepts appointment in the same or a different branch without disclosing their undischarged status, or enters a foreign military without U.S. authorization. Act of fraudulent re-enlistment itself constitutes desertion, regardless of whether the accused was ever physically absent from any duty.
Commissioned officer quitting before resignation acceptance
the officer-specific form. A commissioned officer who has tendered a resignation but quits their post or proper duties before receiving notice that the resignation has been accepted, with intent to remain away permanently, commits desertion under Article 85(b).
The specific form of intent must be alleged in the charge. As the Army Court of Military Review held in United States v. Morgan, 44 C.M.R. 898 (A.C.M.R. 1971), the specification must state which type of intent is at issue, the crime of desertion is not properly alleged without it.
How Desertion Relates to AWOL, and Why the Distinction Collapses in Practice
On paper, the distinction is straightforward. AWOL under Article 86 requires only unauthorized absence, no specific intent beyond the general intent to be where one is not supposed to be. Desertion requires that additional specific intent: permanent departure, avoidance of hazardous duty, or shirking important service.
In practice, the line blurs. A service member absent for 31 days triggers a regulatory presumption that shifts the burden to the defense. The MCM notes that an unauthorized absence of more than 30 days raises an inference, not a presumption of law, but a permissive inference, that the accused intended to remain away permanently. The prosecution still must prove intent beyond a reasonable doubt, but the 30-day threshold gives them a starting point.
AWOL is a lesser included offense of most forms of desertion. This means that even when the prosecution charges desertion, the court-martial panel can find the accused guilty of AWOL instead if the evidence does not support the specific intent element. This happens more frequently than the desertion conviction rate alone would suggest, many cases charged as desertion are resolved as AWOL, either through findings or through plea negotiations.
Practical consequence for service members is that fighting a desertion charge is often a fight about downgrading, not about acquittal. The absence happened. The question is what it was, and what the evidence says about what was in the accused’s mind when it happened.
Punishment Across Conditions
The punishment framework for desertion is the most condition-dependent of any offense in this section of the UCMJ.
For offenses committed before December 27, 2023, the traditional maximums apply. Desertion with intent to remain away permanently, terminated voluntarily: dishonorable discharge, total forfeiture of all pay and allowances, reduction to E-1, and confinement for two years. If terminated by apprehension: three years. Desertion to avoid hazardous duty or shirk important service: five years, regardless of termination method. Officer desertion before resignation acceptance: dismissal, total forfeiture, and two years (three if apprehended).
For offenses on or after December 27, 2023, the sentencing parameters established by Executive Order 14103 apply. Many Article 85 violations now fall into offense categories with maximum confinement of 36 months regardless of the specific desertion type. The traditional punishment distinctions, between voluntary return and apprehension, between different forms of intent, are partially absorbed into the category system.
One punishment, however, remains unchanged regardless of date.
Article 85(c) states that any person found guilty of desertion or attempt to desert, if the offense is committed in time of war, may be punished by death or such other punishment as a court-martial may direct. The death penalty for wartime desertion has been part of the UCMJ since its enactment. It has been exercised exactly once since the Civil War. Private Eddie Slovik, executed by firing squad on January 31, 1945, after his conviction for desertion before the enemy during the European campaign. Forty-nine other soldiers were sentenced to death for desertion during World War II; all were commuted except Slovik’s.
The statute of limitations reflects the severity. Wartime desertion has no statute of limitations. Peacetime desertion is subject to the general five-year limitation under Article 43, but the clock does not run during periods when the accused is absent from military jurisdiction, meaning the limitation period effectively extends for the duration of the absence.
What Makes This Offense Different From Everything Else in Subchapter X
Every offense covered so far in this series, attempt, conspiracy, solicitation, principal liability, accessory after the fact, lesser included offenses, operates on or around a crime that someone commits. Article 85 is the first offense in this series where the crime is leaving. Not doing something illegal, but failing to be where the military requires you to be, and doing so with a mind toward permanence.
This changes the evidentiary landscape. Prosecutors cannot point to a drug transaction, an assault, a fraudulent document. Desertion is an absence, a negative space. The evidence is what fills that space: how long, what they said, what they took, what they left behind, how they were found. Every case is constructed from inference, and the defense’s job is to offer an alternative inference that accounts for the same facts without the element of permanent intent.
Joseph L. Jordan, Attorney at Law: Article 85 punishes unauthorized absence combined with the intent to remain away permanently, avoid hazardous duty, or shirk important service. The intent element is what separates desertion from AWOL under Article 86. In wartime, desertion is punishable by death.
This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is created by reading this content. If you are facing charges under the UCMJ or need legal guidance regarding military justice matters, consult a qualified military defense attorney.