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UCMJ Article 85: Desertion

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’ll fight to make sure the full story of your absence is told.

What Is Article 85 Of The UCMJ?

Desertion under Article 85 of the UCMJ occurs when a service member went from or remained absent from his/her (unit) (organization) (place of duty) and that the accused remained absent until a specific date and this absence was without authority from someone who could give the accused leave. It also includes that the accused, at some point during the absence, intended to remain permanently away.

There are additional aggravating factors of desertion under Article 85 that will bring about more severe consequences. One is that the accused’s absence was terminated by apprehension and the other is that the accused’s absence was in a time of war. The latter aggravating factor can warrant the death penalty which highlights just how serious the military takes the charge of desertion.

Now, it is true that the military justice system has not executed a service member for desertion since World War 2 and even then, there was just one. However, the nature of that execution which we will discuss later highlights how the military justice system can operate in a seemingly arbitrary and capricious manner when it comes to charges of desertion. What you need to know is that you must treat these charges with deadly seriousness and if you want to win against them, you must be willing to put up the fight of your life.

What’s the Worst Punishment For Desertion Under Article 85?

By far, the worst punishment you could face is death given that we’ve all got but the one life to live. However, understanding that the death penalty is not even remotely likely, you would do well to understand the full continuum of charges under Article 85 and their max punishments.

Desertion With Intent To Remain Away Permanently

  • This would be your standard case of desertion as outlined above. More than AWOL or UA, this is when a service intends to abscond from military life and fully intend to never return. That charge brings with it a max punishment of a dishonorable discharge, forfeiture of all pay and allowances, 2 years confinement and a reduction in rank to E-1.

  • Now, if your desertion ended as a result of apprehension, you can add another year of confinement to that max punishment. Then, if you try and pull this off in a time of war, the max punishment is death.

Desertion With Intent To Avoid Hazardous Duty Or To Shirk Important Service

  • For this charge to occur, the accused must quit their (unit) (organization) (place of duty) and did so to (avoid a certain duty) (shirk a certain service) that was deemed hazardous or important. It must also be proved that the accused knew they would be required for such duty.

  • Namely, you can’t run from danger in the United States military if duty calls otherwise. The UCMJ defines “hazardous duty” as duty that involves danger, risk, or peril to the individual performing the duty. Doing so will land you a max punishment of a dishonorable discharge, forfeiture of all pay and allowances, 5 years confinement and reduction in rank to E-1. If this takes place in a time of war, death is the maximum punishment.

Desertion Before Notice Of Acceptance Of Resignation

  • For this charge to occur, the accused must be a commissioned officer of the military and had tendered his/her resignation. Then, before they received notice of the acceptance of the resignation, the accused quit their post or proper duties and did so with the intent to remain away permanently. As with other charges of desertion, the aggravating factors of termination by apprehension and during a time of war apply.

  • Max punishment for this charge is dismissal, forfeiture of all pay and allowances and 2 years confinement. If the desertion was terminated by apprehension, it will add another year of confinement. Then, if it took place during a time of war it brings the max punishment of death.

Attempted desertion:

  • For this charge to occur, the accused must commit a certain act that was done with the specific intent to commit the offense of desertion and the act amounted to more than mere preparation. It must be a substantial step that would have resulted in the actual commission of the offense of desertion and would have succeeded were it not for an unexpected intervening circumstance that prevented completion.

  • Essentially, if you try to commit the act of desertion and fail, they are going to charge you as if you actually committed the act. This is evident by the fact that the max punishments mirror that of the actual acts of desertion. This charge brings a max punishment of dishonorable discharge, forfeiture of all pay and allowances, 2 years confinement and reduction in rank to E-1. Doing so to avoid hazardous duty or shirk important service is a dishonorable discharge, forfeiture of all pay and allowances, 5 years confinement and E-1. Finally, doing so in a time of war can result in the death penalty. 

 

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Timothy James Bilecki

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A Historical Case Study On Desertion

As mentioned earlier, the military has not executed a service member for desertion since World War 2 and even then, there was just one. Now, what might surprise you is that there were 49 service members convicted of desertion and yet, one Eddie Slovik was the only one to face a firing squad. In 1944, Slovik was assigned to the 28th Infantry Division in Europe. During his first contact with the enemy and under a heavy artillery barrage, Slovik hid and was separated from his unit.

When he awoke the next morning, he found a Canadian MP unit had occupied the town and he turned himself in to the Canadians. He remained with them for weeks before he was transferred back to the Americans. There he informed his commanding officer that he was too terrified to serve on the front lines and requested a transfer to a rear echelon unit. His transfer request was denied and he was ordered back to the front lines.

The next morning he deserted again and headed for the rear. There, he found an enlisted Army cook with the 112th Infantry Regiment and handed him a note confessing to the act of desertion. He explained his trauma and that he couldn’t serve on the front lines. The cook took Slovik to his commanding officer who gave Slovik the chance to tear up the note and return to duty. Slovik refused and said he would accept the court martial.

In November of 1944, he faced court martial that was tried by all staff officers as all officers with combat experience were on the front lines in the fight. That means 9 men who never saw the slightest hint of combat were trying the case and judging Slovik’s actions in combat. Those men found Slovik guilty of desertion and sentenced him to death. Prior to Slovik, all Soldiers given the death penalty received clemency from this max punishment. Slovik thought the same would be his fate.

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In December, he wrote a letter to Eisenhower pleading for clemency. The only problem was that desertion was starting to become a rampant problem and it was determined that an example had to be made. That example was to be made out of one Eddie Slovik. On January 31st, 1945, Slovik was stripped of all rank or military insignia from his uniform, a black hood was placed over his head, and 12 riflemen fired bullets into his heart from 20 paces away.

Though he was tried by 9 officers who never experienced combat, karma had a way of working itself out. When American lines were overrun during the Battle of Bulge, those staff officers got their taste of combat. One such officer, Benedict Kimmelman, who saw combat then and watched desertion take place among his own unit regretted his decision to convict and execute Slovik. He later said, “Our lack of firsthand, close-up battle experience disqualified us as a jury of Slovik’s peers.” He also maligned the inexperience of Slovik’s defense counsel which had no proper legal training.

Fighting Unjust Prosecution of Desertion Is a Moral Calling

Kimmelman along with those who witnessed the execution of Slovik had no doubt that they committed a wrong. Kimmelman would also write that “Slovik, guilty as many others were, was made an example – the sole example as it turned out. An example is a victim. His execution was a historic injustice.” While the military justice system may not find itself executing service members as of late, what remains true is that the modern military justice system still needs their “examples.”

If you are facing any charge of desertion, do not let the military justice system make that example out of you. Like Slovik, you may be sorely surprised that your punishment exceeds that of your peers. If you don’t fight back and make yourself a harder target than the next guy, they will make that example out of you.

We understand that you may have never thought desertion would be in your future and this isn’t why you signed up. However, you are here now and you must fight back. In your defense, we’ll fight the prosecution at every turn and force them to prove every single element requires for a proper charge. If you are facing these charges, you must concede nothing to the military justice system.

Slovik handed in a note expecting the same mercy he saw offered to other deserters. Instead, he found himself the example and as one of the men who tried his case, a historical injustice. If you don’t fight his charge or any charge, the military justice system will roll over you because they must have their “example” to maintain order. Reach out to us if you think Article 85 charges could be in your future and we’ll fight this moral fight together.

Bilecki Law Group will help you fight back against charges under Article 85: Desertion

UCMJ Article 87b

Frequently Asked Questions About Article 85

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

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.

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