"Mistake of Fact” Defense

In U.S. v. Guest, 46 M.J. 778, 781 (Army Ct. Crim. App. 1997) the court held that a mistake of fact defense requiring the mistake to be both honest and reasonable may be available under the circumstances of an AWOL charge. In U.S. v. Gonzalez, 42 M.J. 469, 472 (1995) the court held that any evidence tending to negate an intent to avoid hazardous duty or shirk important service is relevant to any such desertion charge.

Many of us assume that duty in Iraq or Afghanistan, for example, is hazardous. That is not necessarily the case. The same is true for important service. The opportunity to present an effective defense is equally available in many AWOL cases standing alone or as a lesser included offense to a charged desertion. In addition to the potential for a mistake of fact defense, the necessity to prove the intent and knowledge requisite to convict under Articles 86, UCMJ, can also prove troublesome for the government as evident in U.S. v. Adams, 63 M.J. 223 (2006) and U.S. v. Timmins, 45 C.M.R. 249 (CMA 1972).

In the past several months alone, trial defense counsel have effectively defended against desertion charges by negating proof of knowledge of hazardous duty, establishing temporary rather than permanent intent to remain away, and presenting a mistake of fact defense sufficient to negate the specific intent required to convict for desertion.