UCMJ Article 85: Desertion

Desertion according to the Manual for Court Martial is any action taken by a U.S. service member with the aim of willfully departing from his or her post, whether permanently or with the intent to shirk an important or dangerous duty.

Desertion carries with it some extremely harsh sentencing. Service members are often forced to swallow this punishment despite incredible stress and other extenuating circumstances. But make no mistake; prosecutors will not consider these factors in a general court-martial.

  • Desertion charges often go to a general court-martial. You will almost certainly face a dishonorable discharge from the military
  • All military benefits and pay will be forfeited. You will never see your G.I. benefits. The military will forget you ever existed in its ranks.
  • Desertion often carries with it years of confinement. Are you ready to go to jail for a crime that may have been out of your control?

The government is building a case against you and will convict you of desertion if you do not fight back. For service men and women who desire to preserve their integrity and freedoms, Bilecki & Tipon is here to help.

What Is Article 85 of the UCMJ?

Article 85 of the UCMJ governs conviction and sentencing for crimes related to desertion by any member of the Armed Services. Article 85 defines four kinds of desertion, each with its own set of elements which must be proven beyond a reasonable doubt by prosecutors to convict you of the crime:

Desertion with intent to remain away permanently:

  • That the accused absented himself or herself from his or her unit, organization or place of duty
  • That such absence was without authority
  • 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
  • That the accused remained absent until the date alleged

Desertion with intent to avoid hazardous duty or shirk important service:

  • That the accused quit his or her unit, organization or other place of duty
  • That the accused did so with the intent to avoid a certain duty or shirt a certain service
  • That the duty to be performed was hazardous or the service important
  • That the accused knew that he or she would be required for such duty or service
  • That the accused remained absent until the date alleged

Desertion before notice of acceptance of resignation:

  • That the accused was a commissioned officer of an armed force of the United States, and had tendered his or her resignation
  • That before he or she received notice of the acceptance of the resignation, the accused quit his or her post or proper duties
  • That the accused did so with the intent to remain away permanently from his or her post or proper duties.
  • That the accused remained absent until the date alleged

Attempted desertion:

  • That the accused did a certain overt act
  • That the act was done with the specific intent to desert
  • That the act amounted to more than mere preparation
  • That the act apparently tended to effect the commi9ssion of the offense of desertion

Our take: The military believes you’ve purposefully abandoned your post or unite and will charge you with desertion under Article 85. Prosecutors will attempt to prove your absence provides more than enough evidence to convict you. But reasons for desertion—if desertion was truly your intent at all—are where most Article 85 courts-martial are fought.

Military Defense Attorney for Article 85 of the UCMJ: Strategies and Tactics

Desertion is not a clear cut criminal act, despite what the government and its prosecutors would have you believe. Circumstances regarding your health and wellbeing, as well as your intent to return to your unit, will play a pivotal role in our defense.

Here are just a few of the questions Bilecki & Tipon will ask to build your defense and secure the best possible outcome in your case:

  • What was your state of mind at the time of your desertion? What events led up to the departure of your post? Mental stress beyond your control could have affected your leaving.
  • Was your desertion intentional? Did circumstances create a compelling reason for your departure? Was the desertion out of your control?
  • How long were you gone for? Is the prosecution’s evidence strong enough to prove without a doubt that you intended to permanently leave or avoid your duties?

The right questions posed by your defense team could make it difficult for the prosecution to convict you. If you’re facing desertion charges, Bilecki & Tipon can help.

Experienced Military Defense Lawyers for Article 85 Charges

Do not allow the prosecution to step all over you in court. An aggressive team of court-martial defense attorneys are often all it takes to beat back the prosecution’s accusations and secure the best possible outcome for you in court.

Bilecki & Tipon will help you fight back against charges under Article 85: Desertion


FAQs and UCMJ Article 85

What Is the Difference between Desertion and Absence without Leave?

Article 85 governs Desertion, the willful abandonment of a post either permanently or with the intent to avoid duties.

Article 86 governs Absence without Leave, where the service member fails to appear at an appointed place of duty out of negligence or without authority.

Article 86 is a lesser included offense of Article 85.

What Is the Maximum Possible Punishment for Article 85: Desertion?

Maximum punishment for desertion varies based on the type of desertion the government is accusing you of. There are four potential criminal actions under desertion which govern maximum punishment.

Maximum punishment for desertion with the intent of staying away permanently: Reduction to E-1, forfeiture of all pay and allowances, confinement of 2 or 3 years, and a dishonorable discharge.

Maximum punishment for desertion with the intent to avoid an important or high risk duty: Reduction to E-1, forfeiture of all pay and allowances, confinement of 2 or 3 years, and a dishonorable discharge.

Note: A wartime charge of desertion may carry with the possibility of a capital referral - the death sentence.

Maximum punishment for desertion before receiving notice of acceptance of resignation: Reduction to E-1, forfeiture of all pay and allowances, confinement of 2 or 3 years, and a dishonorable discharge.

Maximum punishment for attempt to desert: Reduction to E-1, forfeiture of all pay and allowances, confinement of 2 or 3 years, and a dishonorable discharge.

What Our Clients Are Saying About Us

  • Bilecki & Tipon, LLLC His knowledge and experience were evident during the Article 32 where he seemed to sort of take control of the court room.
  • Bilecki & Tipon, LLLC This was the best investment I have ever made in my life. Again I am forever in debt to this firm.
  • Bilecki & Tipon, LLLC Mr. Bilecki and his law group ARE that best team.
  • Bilecki & Tipon, LLLC Mr. Bilecki and his team are extremely aggressive, thorough, and know what they are doing. They saved my life.
  • Bilecki & Tipon, LLLC Do not go into the courtroom by yourself. Go in with a confident hard charging legal firm like Bilecki & Tipon.
  • Bilecki & Tipon, LLLC Mr. Bilecki and his associates are amazingly qualified and skilled in handling UCMJ cases.
Prev Next

Request Your Case Evaluation

You deserve a fighting chance on your day in court. When it comes time to decide who your defense attorney will be, make that decision count.

    • Please enter your name.
    • This isn't a valid phone number.
      Please enter your phone number.
    • This isn't a valid email address.
      Please enter your email address.
    • Please make a selection.
    • Please enter a message.