Desertion accusations are among the most serious charges you can face as a service member. Desertion goes beyond just being absent without leave (AWOL)—it implies that you left your post with no intention of returning.
The consequences are dire and can include confinement, dishonorable discharge, forfeiture of pay, and a lifelong criminal record. In extreme cases during wartime, you may face the death penalty, though this is rare today.
If you’ve been accused of desertion, every step you take from this point forward will affect your case. Here’s a breakdown of what you should do to protect your rights and your future.
Do Not Make Any Statements Without Legal Counsel
This is the most important step you can take. When confronted with accusations, it’s natural to want to explain yourself. But just as in a civilian criminal court, anything you say to your command, investigators, or fellow service members can be used against you. Even seemingly innocent comments can be misinterpreted or taken out of context later. The safest course of action is to refuse to talk without an attorney present.
Invoke your right to remain silent and request legal counsel immediately. You have the right to a military defense attorney. You can also retain civilian defense counsel who have experience in military law.
Understand the Charges
Desertion is explained in 10 U.S. Code § 885 Article 85. For you to be convicted, the prosecution must prove that you left your post with the intent to remain away permanently. This differs from an AWOL charge.
The government must prove:
- You were absent without authority, and
- The absence was with the intention of not returning.
In some cases, they also must prove that the desertion occurred during wartime or that it involved certain aggravating factors. When you know what you’re charged with, you can hire an experienced attorney who can plan your defense.
Document Your Mental, Emotional, and Physical Health
Desertion charges often involve complex circumstances. Mental health problems, overwhelming stress, traumatic experiences, or even misunderstandings can all affect your decision to leave your post. Start gathering any medical or psychological documentation that can help your attorney understand what was happening when you left.
This could include:
- Civilian or military mental health records
- Letters or notes from therapists, religious leaders, or family members
- Prescription history (both for mental health and physical conditions)
- Documentation regarding your combat exposure or trauma
These records may help show that you didn’t have the intent to desert or that your judgment was impaired.
Gather Witnesses and Evidence
Think about who knew what you were going through before and/or during your absence. Did anyone try to help you? Did you ask for leave? Did you speak with your chain of command about your struggles?
Witnesses typically include:
- Friends or fellow service members
- Supervisors and commanders
- Medical personnel
- Family members
Your attorney can help you collect statements or ask for testimony. These witnesses can help shed light on your state of mind. They may also testify to any attempts you made to seek help or return to duty.
Cooperate with Your Attorney
Time is of the essence—the sooner your attorney can start building your defense, the stronger your defense can be. It’s important to cooperate with your attorney and be honest, even if you’re embarrassed or the situation is complicated. Your lawyer’s job is to be your advocate, not your judge.
Your defense strategy may include:
- Whether your absence truly meets the legal definition of desertion
- If your intent to remain away permanently can be proved
- Any procedural errors made by command
- Mitigating factors like mental health or personal crises
Comply with All Orders and Legal Proceedings
Once you’re back in military custody or under supervision, you must follow all orders, attend required hearings, and always maintain professional conduct. Your behavior influences how your case is perceived and resolved.
Fortunately, not every desertion case ends in a court-martial. Depending on the circumstances, you may be eligible for non-judicial punishment, lesser charges, deferred prosecution, and other solutions. A knowledgeable attorney can negotiate for the best outcome possible.
Talk to an Experienced Military Defense Attorney Today
Court Martial Law Division – A Division of Aviso Law LLC understands the military justice system inside and out, and we’ll fight for your fair treatment. Call us for a confidential consultation today.
