The Four Types of Military Desertion

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You may have heard about desertion in the military, but what does it actually entail? Under Article 85 of the Uniform Code of Military Justice, it is illegal for a military member to leave his or her unit and remain away with the intention of doing so permanently. This also encompasses those who leave their unit in order to avoid specific duties. 

How can a service member be charged with desertion?

There are a variety of ways in which a service member may be charged with desertion. But first, the service member must be proven to have actually deserted his or her unit. The prosecution must prove this beyond a reasonable doubt. There are four different types of desertion, each one with its own set of elements.

1. Desertion with Intent to Remain Away Permanently

The prosecution must prove that:

  1. The accused was gone from his or her unit, organization or place of duty;
  2. His or her absence was without authority;
  3. He or she decided at the time the absence began or at some point while gone that he or she intended to stay away permanently; and
  4. He or she remained absent through the date alleged.

2. Desertion with Intent to Avoid Hazardous Duty or Shirk Important Service

The prosecution must prove that:

  1. The accused quit his or her place of duty or unit;
  2. He or she did so intending to avoid a specific duty or service;
  3. The duty in question was hazardous or the service was important;
  4. He or she knew that he or she was required to partake in that duty or service; and
  5. He or she remained absent through the date alleged. 

3. Desertion Before Notice of Acceptance of Fesignation

The prosecution must prove that:

  1. The accused was a commissioned officer of an armed force of the United States and had given his or her resignation;
  2. He or she quite his or her post or duties prior to receiving notice of acceptance of said resignation;
  3. He or she did so intending to stay away from his or her post or duties permanently; and 
  4. He or she remained absent through the date alleged. 

4. Attempted Desertion

The prosecution must prove that:

  1. The accused engaged in a certain 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 apparently tended to affect the commission of the offense of desertion

In order for the prosecution to prove that a service member did in fact commit desertion or attempted desertion (without a reasonable doubt), it will delve into several different questions, such as:

  • What was your state of mind at the time you deserted? 
  • What happened before you left? 
  • Did you intentionally desert? 
  • Was there a compelling reason for your departure due to the circumstances? 
  • Were you in control of the desertion?
  • What was the length of time for which you were gone?

The government isn’t concerned with determining why you left, but rather proving that you did so. Often the facts regarding your health and wellbeing may help to establish your defense, which may include:

  • Duress
  • Mistake of fact 
  • Former jeopardy

The Court-Martial Law Division of Aviso Law LLC Helps Military Members in Colorado Who Have Been Charged with a Crime

The U.S. Government has an interest in obtaining a conviction as soon as possible, as it does not wish to gain negative publicity about one of its service members. That is why it is so important to consult with a knowledgeable and experienced military attorney as soon as possible.

If you are a military service member (active or reserve) and have been charged with a crime under the UCMJ, the Court-Martial Law Division of Aviso Law LLC can help. We proudly serve our military members, who sacrifice so much for our country. To learn more or to schedule a free consultation, contact us today!

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