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Article 85 of the Uniform Code of Military Justice establishes the offense of desertion, which involves a service member’s unauthorized departure from or absence from their unit or duty with a specific intent to remain away permanently. The article also covers conduct in which a member leaves or remains absent to avoid hazardous duty or shirk important service. Desertion is distinct from simple absence without leave because it requires a qualifying intent at the time of the misconduct.
Article 85 prohibits three primary categories of behavior:
The offense also includes enlisting or accepting an appointment in another military force without proper separation, when done with intent to terminate current service.
Only persons subject to military jurisdiction under the UCMJ may be charged with desertion. This generally includes active-duty members, certain reservists, and others lawfully within the armed forces. Civilians cannot be charged with Article 85 absent a legally recognized military status.
Desertion requires proof of specific intent. The prosecution must show that the accused knowingly left or remained absent with the purpose of staying away permanently or avoiding particular duties. Negligence or mere inadvertence is insufficient to establish the offense.
Attempted desertion is expressly punishable under Article 85 and does not require completion of the underlying offense. An overt act directed toward desertion is sufficient.
Conspiracy to desert can be charged under Article 81 when two or more persons agree to commit desertion and take an overt step toward its completion. Aiding or assisting another’s desertion may give rise to liability as an accessory under Article 77. These forms of liability do not require the aider or co-conspirator to share military status, provided jurisdiction exists.
Watch the military defense lawyers at Gonzalez & Waddington break down how they defend service members worldwide against UCMJ allegations, CID/NCIS/OSI investigations, court-martials, Article 120 cases, administrative separations, and GOMORs. If you’re under investigation or facing charges, this video explains what your rights are and how experienced civilian military counsel can make the difference.
To secure a conviction for desertion under Article 85 of the Uniform Code of Military Justice, the government must prove each statutory element beyond a reasonable doubt. These elements define the prohibited conduct and the required mental state that distinguish desertion from lesser absence-related offenses under military law.
The mens rea for desertion centers on the specific intent to remain away permanently or to avoid or shirk designated duties. This intent must exist at or during the period of unauthorized absence and is what distinguishes desertion from simple absence without leave.
The actus reus consists of the unauthorized departure or failure to remain at a required place of duty. The government must show that the accused physically removed themself or failed to report as required, creating a period of unauthorized absence.
Key statutory terms include “permanently,” which refers to an intent not to return to military authority, and “hazardous duty” or “important service,” which encompass assignments or missions designated by competent authority as involving elevated risk or substantial operational significance.
Punishment for violations of Article 85 (Desertion) under the Uniform Code of Military Justice depends on the date of the alleged offense. For offenses committed before December 27, 2023, the traditional maximum_punishment model applies. For offenses on or after that date, the updated sentencing framework introduced by the Military Justice Act of 2016 and implemented through Executive Order 14103 applies.
Under the pre_December 27, 2023 system, maximum punishments derived from the Manual for Courts_Martial (2019 ed.). Article 85 authorized different maximum penalties depending on the circumstances of the desertion:
For offenses occurring on or after December 27, 2023, Article 85 is assigned to Sentencing Category 3 under the updated sentencing system.
Under the revised system, sentencing categories establish structured confinement ranges applicable across offenses within each category. This framework differs from the prior model, which relied on offense_specific maximum punishments without standardized ranges. The new category_based approach provides defined sentencing brackets while preserving judicial discretion within those ranges.
In practice, decisions to charge a service member with desertion under Article 85 are shaped by the specific fact pattern, how long the member was absent, evidence of intent, and the investigative timeline. Commanders rely on available documentation and investigative findings to decide whether a case warrants the more serious Article 85 charge rather than a lesser absence offense.
Charges under Article 85 typically arise from situations where a member departs a unit or duty location and remains absent under circumstances suggesting an intent to permanently separate from service or avoid hazardous or important duties. Common scenarios include:
Prosecutors often pair Article 85 with other UCMJ provisions to reflect the full scope of misconduct or to provide alternative theories if intent is disputed. Common co-charges include:
Most cases begin with a unit-level determination that a member is absent and unaccounted for, followed by administrative tracking and documentation. If the absence extends or circumstances suggest intent to desert, commanders typically initiate formal reports and request law-enforcement involvement. Service investigative agencies—CID for the Army, NCIS for the Navy and Marine Corps, OSI for the Air and Space Forces, and CGIS for the Coast Guard—may conduct interviews, gather electronic records, and coordinate with civilian law enforcement for apprehension or verification of the member’s whereabouts.
Charge-stacking is common, with prosecutors preferring to include both Article 85 and lesser alternatives to preserve options at trial. Overlapping statutes allow the government to address nuanced intent issues without committing exclusively to a desertion theory. Patterns also show the use of multiple charges to reflect missed movements, derivative misconduct, or administrative noncompliance occurring during the absence.
Prosecutions under UCMJ Article 85 often hinge on whether the government can establish each statutory element beyond a reasonable doubt. Litigation in these cases frequently turns on factual reconstruction, the reliability of witness accounts, the admissibility and weight of evidence, and the interpretation of specific statutory terms. Courts and counsel commonly focus on how these factors interact in determining whether the legal threshold for desertion has been met.
Element-based disputes in Article 85 cases typically arise from disagreements about the sufficiency and clarity of the evidence supporting required components such as the alleged absence, the duty status of the accused, the characterization of the absence as quitting one’s unit or place of duty, and the alleged intent to remain away permanently. Contested issues often involve:
Intent is frequently a central point of contention in desertion cases. The government must typically show that the accused intended to remain away permanently or intended to avoid hazardous duty or important service. Disputes may arise over the accused’s state of mind at the moment of departure, the relevance of subsequent conduct, and whether circumstantial evidence adequately supports the required mental state. Arguments may also focus on distinctions between knowledge, recklessness, or negligence where the statutory language or military precedent implicates these concepts.
Witness credibility often affects the strength of both the prosecution’s and defense’s narratives. Factual disputes may involve conflicting accounts of orders given, duty expectations, or the circumstances surrounding the accused’s departure. Investigators’ testimony and records may also be examined for consistency, documentation accuracy, and potential gaps in factual development. Credibility assessments can influence how factfinders interpret ambiguous conduct or statements.
Evidentiary challenges may concern the admissibility of statements made by the accused, including whether rights advisements were properly administered. Searches of barracks rooms, personal devices, or digital communication platforms can raise questions about authorization, scope, and chain of custody. Documentary records—such as leave forms, duty rosters, or unit logs—may also be contested for authenticity, completeness, or relevance.
Ambiguities in the language of Article 85 or its related provisions may generate disputes regarding definitions such as “unit,” “place of duty,” or “hazardous duty.” Interpretation questions can also arise from cross-references to regulations or procedural rules. Courts may examine legislative history, precedent, and interpretive canons to resolve uncertainties about the statute’s reach and application.
Collateral consequences are administrative, professional, or legal effects that may arise separately from any sentence imposed by a court-martial. These outcomes typically result from regulatory, statutory, or policy requirements and can influence a service member’s career, benefits, and post_service opportunities.
A conviction under UCMJ Article 85: Desertion can lead to significant administrative actions. Command authorities may initiate administrative separation, and the resulting discharge characterization may be less than honorable, depending on the circumstances. Such a conviction can also affect promotion eligibility, limit opportunities for reenlistment, and disrupt the accumulation of creditable service toward retirement. In some cases, a member may become ineligible for future military service, even if not formally separated at the time of conviction.
Desertion convictions may adversely affect a service member’s eligibility for a security clearance due to concerns about reliability, trustworthiness, and judgment. Loss or denial of a clearance can restrict access to certain duties or positions and may affect civilian employment in sectors that rely on clearance eligibility or federal background checks.
Article 85 convictions do not generally trigger sex offender registration or similar obligations. Registration requirements are governed by federal and state law and apply only when an offense meets specific statutory criteria, which desertion typically does not.
Although desertion is primarily a military offense, certain associated conduct—such as fraudulently obtaining benefits while absent—may expose an individual to federal or state criminal investigation. Civil financial liabilities may also arise if government property or resources were affected.
For non-citizens or naturalized service members, a desertion conviction may have implications for immigration status, admissibility, or naturalization eligibility. Effects vary based on federal immigration law and the specific facts of the case.
During a UCMJ Article 85 investigation, decisions made in the initial stages often influence the direction and outcome of the case long before any charges are preferred. The investigative process shapes how facts are framed, how evidence is interpreted, and how a service member’s actions are understood within the broader context of military obligations.
Military investigators typically begin gathering evidence as soon as a potential desertion incident is reported. Early legal involvement helps ensure that statements, documents, and digital records are properly preserved and accurately contextualized. Without informed guidance, a service member may inadvertently provide information that is incomplete, misleading, or open to misinterpretation, affecting how the evidence is ultimately viewed.
Command or law-enforcement interviews often occur before a service member fully understands the nature of the allegations or the scope of the inquiry. Participating in interviews without legal advice can result in unclear or inconsistent statements, which may carry significant weight later in the process. Civilian military defense lawyers can help clarify rights and procedural considerations during this phase.
Command-directed investigations and administrative inquiries may proceed independently of any criminal process. Early responses in these forums can influence command perceptions, administrative findings, and decisions that may later intersect with judicial proceedings.
Choices made at the outset—such as consenting to searches, providing statements, or responding to administrative requests—can have lasting effects throughout a court-martial or subsequent administrative action. Early decisions often determine what evidence is available, how it is interpreted, and what options remain open as the case develops.
Gonzalez & Waddington is a civilian military defense law firm that represents service members worldwide in cases arising under the Uniform Code of Military Justice. The firm focuses on defending clients facing allegations that may lead to courts-martial, adverse administrative actions, or other military justice consequences. Their attorneys work with Soldiers, Sailors, Airmen, Marines, Guardians, and Coast Guardsmen in complex cases that require a detailed understanding of military law and procedure.
If you are facing an investigation or charges under UCMJ Article 85, Gonzalez & Waddington can provide informed legal guidance tailored to the military justice system. To discuss your situation and explore available options, you may contact the firm to request a consultation.
Q: What does UCMJ Article 85: Desertion cover?
A: Article 85 addresses situations in which a service member intentionally leaves their unit, organization, or place of duty with the specific intent to remain away permanently. It also applies when a service member avoids hazardous duty or important service by intentionally absenting themselves. The article focuses on the member’s intent and distinguishes desertion from unauthorized absence by requiring proof that the member meant not to return or sought to avoid required duties.
Q: What is the maximum punishment for UCMJ Article 85: Desertion?
A: The maximum punishment depends on the circumstances. Desertion in time of war may be subject to the most severe penalties allowed under military law. Desertion under other conditions may involve confinement, forfeiture of pay, reduction in rank, and punitive discharge. The actual penalty, if any, is determined through the military justice process based on factors such as intent, duration of absence, duty assignment, and aggravating or mitigating circumstances.
Q: Can an allegation under this article lead to administrative separation even without a conviction?
A: Yes. Commanders have authority to initiate administrative separation proceedings based on an alleged pattern of misconduct or a significant incident, including suspected desertion, even without a court_martial conviction. Administrative actions rely on a lower evidentiary threshold than criminal proceedings. The final decision typically considers the service record, the nature of the allegation, and whether the conduct is deemed inconsistent with continued military service.
Q: Do I need a civilian military defense lawyer for an investigation under this article?
A: Service members have the right to consult with appointed military defense counsel, and many choose to seek additional advice from a civilian attorney experienced in military law. A civilian lawyer is optional, but some personnel find value in independent guidance when responding to interviews, preparing statements, or addressing potential administrative actions. The decision generally depends on the complexity of the case and the service member’s personal preference.
Q: Can a desertion allegation be handled without a court_martial?
A: In some instances, commands may choose administrative measures or nonjudicial punishment rather than a court_martial, depending on the facts and the perceived seriousness of the conduct. Factors such as the length of absence, the service member’s intent, prior performance, and mission impact influence this decision. Administrative actions can still carry significant consequences, but they are generally less formal and involve different procedures than judicial proceedings.
Q: Which investigative agencies typically handle desertion cases?
A: Desertion allegations may be investigated by military law enforcement agencies such as the Army CID, NCIS, or Air Force OSI, depending on the service branch involved. These agencies may conduct interviews, gather documents, review duty rosters, and coordinate with civilian authorities if the member’s location is unknown. The scope of the investigation varies based on the length of absence, available evidence regarding intent, and potential operational impact.
Q: What types of evidence are commonly reviewed in a desertion investigation?
A: Investigators typically examine duty logs, communication records, travel documents, witness statements, and any actions taken by the service member before or during the absence. They focus on indicators of intent, such as statements about leaving permanently or evidence of efforts to avoid required duties. The goal is to determine whether the absence was deliberate and intended to be permanent or whether other circumstances better explain the individual’s departure.
If you want to review the Articles of the UCMJ and learn more about military law, you can start here: UCMJ Articles and Military Justice Resources. You may also find helpful official information from the Air Force Judge Advocate General’s Corps at afjag.af.mil.
A renowned military criminal defense attorney and best-selling author, Michael Waddington defends clients worldwide in serious cases and trains lawyers in advanced cross-examination. He is frequently featured by major media outlets like CNN and 60 Minutes.
Alexandra González-Waddington is a top military and civilian defense attorney who has handled high-profile sexual assault, violent crime, and war-crimes cases globally. Her work is widely recognized by media outlets including 60 Minutes and ABC’s Nightline.
