UCMJ Article 85: Desertion
Article 85 addresses unauthorized absence with intent to remain away permanently, quitting a unit or place of duty to avoid hazardous duty or shirk important service, and specified desertion by a commissioned officer before notice that a resignation has been accepted. The intent the government must prove is what distinguishes desertion from an ordinary unauthorized absence. An administrative label or the passage of 30 days does not, by itself, prove desertion.
DESERTION · ARTICLE 85
Unauthorized absence + the intent the government must prove
UNAUTHORIZED ABSENCE · ARTICLE 86
Absence without requiring that desertion intent
Not proof of desertion by itself: an administrative label · the passage of 30 days
At Bilecki Law Group, we defend service members against charges of desertion under Article 85 of the UCMJ. We believe there is more to the story than the prosecution lets on, and we will fight to make sure the full story of your absence is told.
Facing an Article 85 charge? See how our AWOL and desertion defense lawyers handle these cases. Related results: Army Lieutenant’s AWOL Case Resolved with GOMOR After Bilecki Presents Mitigation and Bilecki Defends Army Captain in AWOL Case, No Charges Preferred. Past results do not guarantee a similar outcome. To talk with our firm about a desertion charge, call 813-669-3500 or book a free consultation.
Fighting an Unjust Desertion Charge Matters
If you face an Article 85 allegation, do not let a label replace the facts of your case. Why did you leave? What did you intend? What orders, communications, medical information or other circumstances help explain what happened? Your defense should make the government prove the offense actually charged.
You may never have thought a desertion charge would be part of your military career. This is not why you signed up. But you are here now, and your defense matters. We will examine the prosecution’s theory, test every required element and present the facts that bear on your case.
Reach out to Bilecki Law Group if an Article 85 charge may be in your future. We will shoot you straight about the allegation, the evidence and the options for defending it.
What Is Article 85 of the UCMJ?
For desertion with intent to remain away permanently, the government must prove an unauthorized absence from the unit, organization or place of duty; an intent to remain away from it permanently, formed at the outset or at some point during the absence; and the alleged period of absence. If termination by apprehension is alleged, that also must be proved.
- Unauthorized absence from the unit, organization or place of duty
- Intent to remain away permanently, formed at the outset or at some point during the absence
- The alleged period of absence
- Termination by apprehension, if alleged
Permanent intent can be inferred from circumstances, but the circumstances must be examined. Travel, statements, financial arrangements, disposal of military property and a long absence may be relevant. Excellent prior service, valuable property left behind and other facts may cut against the inference. An extended absence alone does not prove desertion, and a personnel record calling someone a “deserter” is not evidence of intent.
MAY BE RELEVANT
MAY CUT AGAINST THE INFERENCE
Not evidence of intent on its own: an extended absence alone · a personnel record calling someone a “deserter”
Article 85(a)(3) addresses enlistment or appointment without disclosure of an existing military obligation and unauthorized entry into a foreign armed service. The Manual explains that this is a rule of evidence concerning permanent intent, not a separate offense. An intent to serve somewhere else does not necessarily defeat an intent to remain away permanently from the original unit. Article 85 and 2024 Manual for Courts-Martial, Part IV, paragraph 9.
The way an absence ends can affect the maximum punishment. So can whether the government alleges avoidance of hazardous duty, shirking important service or desertion in time of war. The exact specification and the law applicable to the offense date need to be reviewed together.
Is Desertion Punishable by Death?
Article 85 permits death for desertion or attempted desertion committed in time of war. It does not authorize death for those offenses at other times. The historical case discussed below shows why assumptions about how a charge will be handled can be dangerous. It does not predict the result of a modern case.
What Is the Maximum Punishment for Desertion?
Outside time of war, the Manual sets these maximums for completed or attempted desertion:
| Form of desertion or attempted desertion | Maximum confinement |
|---|---|
| Intent to avoid hazardous duty or shirk important service | 5 years |
| Other cases terminated by apprehension | 3 years |
| Other cases terminated otherwise | 2 years |
For enlisted members, the listed punishments also authorize a dishonorable discharge and forfeiture of all pay and allowances; reduction in enlisted grade may apply. Commissioned officers, including commissioned warrant officers, are subject to dismissal rather than a dishonorable discharge or reduction to E-1. A dishonorable discharge can apply to an uncommissioned warrant officer. The accused’s status matters.
In time of war, Article 85 authorizes death or another lawful punishment. A capital prosecution requires its own procedural analysis. Court-martial jurisdiction, the offense date and any accepted plea agreement can limit the sentence. 2024 Manual for Courts-Martial, Part IV, paragraph 9(d).
Desertion With Intent to Remain Away Permanently
The government must prove the required intent, not merely that you missed duty or stayed away. Once desertion is complete, a later change of mind and return do not erase the offense. They can still matter in mitigation. We examine what you intended, when you intended it and what the surrounding facts actually show.
Whether the absence was terminated by apprehension is a legal and factual question. We examine how military control resumed and whether that circumstance has been properly alleged and proved. A description such as “returned to duty” or “picked up by police” should not substitute for that analysis.
Desertion to Avoid Hazardous Duty or Shirk Important Service
This form requires proof that you quit the unit, organization or place of duty with intent to avoid a particular hazardous duty or shirk a particular important service, that you knew you would be required to perform it, and that you remained absent for the alleged period. It does not require an intent to remain away permanently.
The Manual’s examples include duty in a combat or other dangerous area, certain movement for foreign or sea duty, riot duty and some service in a public disaster. Ordinary drill, target practice, maneuvers and practice marches are not ordinarily hazardous duty or important service for this purpose. The circumstances matter. The government must prove actual knowledge of the duty or service, although that knowledge can be shown by circumstantial evidence.
THE MANUAL’S EXAMPLES
NOT ORDINARILY
The circumstances matter · Actual knowledge of the duty or service must be proved
Desertion Before Notice That a Resignation Was Accepted
Tendering a resignation does not itself release a commissioned officer from duty. Article 85(b) addresses an officer who, before notice of acceptance, quits the post or proper duties without leave and with intent to remain away permanently. The defense examines the resignation, notice, duty status, authority to leave and alleged intent.
For this form outside time of war, the confinement maximum is three years if the desertion ends by apprehension and two years if it ends otherwise. Dismissal and forfeiture of all pay and allowances are authorized. An officer is not sentenced to reduction to E-1 or a dishonorable discharge.
Attempted Desertion
The government must prove an overt act done with the specific intent to desert, going beyond mere preparation and apparently tending to bring about the offense. An unexpected intervention is not an additional element that must appear in every case. The question is what act was committed, with what intent, and how far it went toward desertion.
The applicable maximums for attempted desertion follow the categories in the table above. Article 85 itself addresses attempted desertion, including the possibility of death in time of war. That specific provision must not be confused with the ordinary Article 80 attempt rule.
Sentencing Parameters
For a noncapital general or special court-martial in which every offense of conviction occurred on or after 28 December 2023, the military judge must apply the relevant sentencing parameters or criteria. A departure from a category range requires specific facts and a written explanation. The lawful maximum and court-martial limits still control.
| Article 85 offense | Sentencing treatment | Category confinement range |
|---|---|---|
| Desertion in time of war | Sentencing criteria | No fixed category range |
| Intent to avoid hazardous duty or shirk important service | Category 2 | 1–36 months |
| Other cases terminated by apprehension | Category 2 | 1–36 months |
| Other cases terminated otherwise | Category 1 | 0–12 months |
For desertion in time of war, the criteria include age and experience; mental impairment or deficiency; proximity to the enemy; pending charges, investigation or adverse action; national security damage and operational impact; avoidance of a vessel’s movement, hazardous duty or important service; unlawful substantial danger to life; and whether the location involved occupation, a contingency operation or active hostilities. These criteria are considerations for sentencing, not additional elements of every desertion offense. 2024 Manual for Courts-Martial, R.C.M. 1002 and Appendices 12B–12D.
A Historical Case: Eddie Slovik
Eddie Slovik was executed for desertion on 31 January 1945. In his later account, Benedict B. Kimmelman, one of the nine officers who sentenced him, described Slovik’s initial separation under fire, time with Canadian military police and return to American control. Slovik then left again and handed a cook a written confession.
Kimmelman recalled that Slovik refused opportunities to withdraw his statement and agree to serve. His defense counsel was not a lawyer. The panel consisted of staff officers who, Kimmelman wrote, had not yet served in the line or commanded troops in actual combat. They unanimously sentenced Slovik to death.
Kimmelman later experienced combat and captivity during the Battle of the Bulge. He said that experience changed his view of the sentence. Looking back, he wrote: “His execution was a historic injustice.” That is the judgment of a participant in the case, not a ruling overturning the conviction. Benedict B. Kimmelman, “The Example of Private Slovik,” September/October 1987.
The point of the Slovik story is not that every desertion allegation is unjust or that the same punishment awaits you. It is that a service member should understand the charge and the consequences before relying on an assumption about mercy, a written statement or what happened to someone else.
Frequently Asked Questions About Article 85
What Is the Difference Between Desertion and AWOL?
An Article 85 charge requires the intent associated with the particular desertion theory, such as remaining away permanently or avoiding hazardous duty or important service. Article 86 addresses specified unauthorized absences without requiring that desertion intent. A long absence or an administrative deserter designation does not, by itself, establish Article 85 guilt.
Can AWOL Be a Lesser Included Offense?
An unauthorized-absence offense may be a lesser included offense of a charged desertion offense. The particular specification and the applicable elements must be examined. It is not a reason to assume that every Article 85 charge automatically becomes an Article 86 conviction if the government cannot prove desertion.
Does Returning Voluntarily Eliminate the Charge?
A return does not undo completed desertion. It can affect the applicable punishment category and the presentation in mitigation. The facts of the return, your intent and the charged period of absence all matter.
What Is the Maximum Punishment?
Outside time of war, the confinement maximum is five years for avoidance of hazardous duty or shirking important service, three years for other desertion terminated by apprehension and two years for other desertion terminated otherwise. Status determines the available punitive separation and reduction. The sentencing parameters and other lawful limits must also be considered. In time of war, Article 85 permits death or another lawful punishment, subject to the applicable procedures.