Desertion exists when any member of the armed forces:
- Quits his or her unit, organization or place of duty with intent to avoid hazardous duty or to shirk important service. United States v. Hocker, 32 M.J. 594 (A.C.M.R. 1991); or
- Without being separated from one of the armed forces, enlists or accepts an appointment in another of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States.
- Additionally, a commissioned officer is in desertion if, after tender of a resignation and before its acceptance, he quits his post or proper duties without leave and with intent to remain away permanently.
Elements of Desertion with Intent to Remain Away Permanently. (The most common form of desertion). MCM, pt. IV, 9.b.(1).
- The accused absented himself from his unit, organization, or place of duty;
- That the 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 unit, organization, or place of duty permanently; and
- The accused remained absent until the date alleged.
- If the absence was terminated by apprehension, that element is added.
Less Common Forms of Desertion
- Desertion with intent to avoid hazardous duty or to shirk important service. MCM, pt. IV, 9b(2).
- Prospective duty as a medic at Fort Sam Houston during Persian Gulf War qualified as important service. United States v. Swanholm, 36 M.J. 743 (A.C.M.R. 1992).
- Thirty-day sentence to brig not important service for purposes of desertion. United States v. Wolff, 25 M.J. 752 (N.M.C.M.R. 1987).
- Being an accused at a special court-martial is not important service. United States v. Walker, 26 M.J. 886 (A.F.C.M.R. 1988) (accused still found guilty, however, because he had an intent to remain away permanently). See TJAGSA Practice Note, Being an Accused: “Service,” But Not “Important Service,” Army Law., Apr. 1989, at 55 (discussing Walker).
- Desertion before notice of acceptance of resignation. MCM, pt. IV, 9.b.(3)
Desertion Terminated by Apprehension
- In addition to the four elements of desertion listed above, if the accused’s absence was terminated by apprehension, the Government may allege termination by apprehension as an aggravating factor.
- If alleged in the specification and proved beyond a reasonable doubt, termination by apprehension increases the maximum confinement from two years to three years. MCM, pt. IV, 9.e.(2)(a) and (b).
- Termination by apprehension may apply to all forms of desertion except absence with intent to avoid hazardous duty or to shirk important service, as the maximum unishment for this latter most serious form of desertion is already a DD and five years. MCM, pt. IV, 9.e.(1).
- An accused may be convicted of desertion terminated by apprehension even though he was apprehended by civilian authorities for a civilian offense and thereafter notified the civilian authorities of his AWOL status. United States v. Fields, 32 C.M.R. 193 (C.M.A. 1962); United States v. Babb, 19 C.M.R. 317 (C.M.A. 1955); United States v. Northern, 42 M.J. 638 (N-M. Ct. Crim. App. 1995). Apprehension by civilian authorities and the subsequent return to military authorities for an offense unrelated to one’s military status does not in and of itself prove that the return was involuntary. United States v. Washington, 24 M.J. 527 (A.F.C.M.R. 1987)
Desertion did not terminate when military authorities requested civilian authorities deny a deserter bail until resolution of civilian charges. United States v. Asbury, 28 M.J. 595 (N.M.C.M.R. 1989)
Attempted desertion should be charged under Article 85 rather than under Article 80. MCM, pt. IV, 4c(6)(a).
Mens Rea for Desertion
The offenses of desertion and absence without leave are similar in most respects, except for the intent element involved in desertion. See United States v. Horner, 32 M.J. 576 (C.G.C.M.R. 1991). The remaining elements of desertion are the same as those for AWOL.
- Desertion is a specific intent crime. United States v. Holder, 22 C.M.R. 3 (C.M.A. 1956).
- Evidence of intent may be based upon all the facts and circumstances of the case. Length of absence, actions and statements of the accused, and the method of termination of the absence (apprehension or voluntary surrender) are some factors to be considered. MCM, pt. IV, 9c(1)(c)(iii). Many of the circumstantial factors listed in the MCM can cut both ways, and may be argued by either side; therefore, in order to sustain a desertion conviction, the Government ought to provide additional context favoring conviction rather than simply raising the circumstances at trial. Ultimately, a conviction for desertion is legally sufficient where, given the circumstances of the particular case, a reasonable factfinder could draw an inference of intent beyond a reasonable doubt. United States v. Oliver, 70 M.J. 64 (C.A.A.F. 2011).
- The determination of whether an accused intended to avoid hazardous duty or shirk important service is subjective, and whether the service is “important” is an objective question dependent upon the totality of circumstances. United States v. Gonzalez, 42 M.J. 469 (1995).
- The length of the absence alone is insufficient to establish an intent to desert; however, in combination with other circumstantial evidence, it may be sufficient. United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).
- The totality of circumstances surrounding the offense can negate specific intent to absent oneself permanently. United States v. Logan, 18 M.J. 606 (A.F.C.M.R. 1984).
- Having an understandable or laudable motive to desert is not a defense if the evidence sufficiently establishes the elements. United States v. Gonzalez, 39 M.J. 742 (N.M.C.M.R. 1994), aff’d 42 M.J. 469 (1995).
- Evidence of an accused’s motive to quit her unit as gesture of protest because of moral or ethical reservations that the unit might commit war crimes is irrelevant to a charge of desertion with intent to avoid hazardous duty or shirk important service. United States v. Huet-Vaughn 43 M.J. 105 (C.A.A.F. 1995).
- Evidence of a 26-month absence while accused was on orders for a war zone and where he was apprehended a long distance from his unit was sufficient to establish intent to desert. United States v. Mackey, 46 C.M.R. 754 (N.C.M.R. 1972).
- Evidence of a two-year absence in vicinity of assigned unit, termination by apprehension, and a previous absence, despite retention of an identification card, was sufficient to show an intent to desert. United States v. Balagtas, 48 C.M.R. 339 (N.C.M.R. 1972).
- The intent to remain away permanently need not coincide with the accused’s departure. A person must have had, either at the inception of the absence or at some time during the absence, the intent to remain away permanently. MCM, pt. IV, ¶ 9.c.(1)(c)(i).
- In a case where desertion with intent to shirk important service was charged, infantry service in Vietnam was held to be “important service.” United States v. Moss, 44 C.M.R. 298 (A.C.M.R. 1971). See also United States v. Hocker, 32 M.J. 594 (A.C.M.R. 1991) (accused’s plea provident to desertion with intent to avoid hazardous duty where service was duty in Persian Gulf).
- In view of the three types of intent encompassed in Article 85 (i.e., intent to remain away permanently, intent to avoid hazardous duty, intent to shirk important service), the crime of desertion is not alleged unless the specific form of intent is stated in the specification. United States v. Morgan, 44 C.M.R. 898 (A.C.M.R. 1971) (the court found the accused guilty of the lesser included offense of AWOL).
- “Desert” and “desertion” are terms of art which necessarily and implicitly include the requirement that the absence was without authority. United States v. Lee, 19 M.J. 587 (N.M.C.M.R. 1984) (specification that alleges that the service member “did desert” is the equivalent of alleging that the members did without authority and with the intent to remain away permanently absent himself from his unit).
- AWOL under Article 86 is a lesser included offense of most forms of desertion. MCM, pt. IV, 9.d