Article 85 UCMJ – Desertion – Military Defense Lawyers
UCMJ Military Defense Guide by Gonzalez & Waddington
Article 85 of the Uniform Code of Military Justice criminalizes desertion—the act of abandoning one’s military duties with the intent to remain away permanently, avoid hazardous duty, or shirk important service. Desertion is one of the oldest and most severe military crimes, punishable by years of confinement, a dishonorable discharge, and historically—even death in wartime.
Most modern desertion cases arise from mental health crises, emotional stress, family emergencies, fear of retaliation, toxic command climates, administrative mistakes, misunderstanding of orders, or difficulty returning to duty after absence. Very few cases involve true “intent to abandon service,” despite aggressive charging by commands.
Florida’s military installations—NAS Jacksonville, Mayport, Pensacola, Whiting Field, Eglin, Hurlburt Field, Tyndall, Patrick SFB, MacDill, NSA Panama City, NAS Key West, and Coast Guard Sectors—experience a higher-than-average rate of desertion and long-term AWOL cases due to the state’s large military population, high-stress training environments, and frequent PCS transitions.
Gonzalez & Waddington defends service members worldwide in AWOL and desertion cases. We expose command failures, mental health triggers, administrative confusion, unlawful orders, toxic leadership environments, and false allegations of “intent to desert.” Most desertion cases can be reduced, dismissed, or resolved without confinement when handled strategically.
What Article 85 Criminalizes
Article 85 includes several forms of desertion:
1. Desertion With Intent to Remain Away Permanently
The service member leaves their unit or duty station with the intent never to return.
2. Desertion to Avoid Hazardous Duty
Leaving or attempting to avoid deployments, combat, field exercises, or dangerous missions.
3. Desertion to Avoid Important Service
Leaving to avoid major duty such as inspections, investigations, high-stakes missions, or significant responsibilities.
4. Attempted Desertion
Taking steps to desert, even if the member fails or returns voluntarily.
Unlike Article 86 (AWOL), Article 85 requires specific intent—not just absence.
Elements of Article 85 Desertion
1. The Accused Left Their Unit, Organization, or Duty Station
Any departure outside authorized leave or orders qualifies as “absence.”
2. The Absence Was Without Authority
No permission, leave approval, or proper authorization.
3. The Accused Intended to:
- Remain away permanently, or
- Avoid hazardous duty, or
- Avoid important service
Intent is EVERYTHING. Without proving intent, the case falls apart.
Intent — The Heart of Every Desertion Case
The government must prove the service member intended to desert—not just leave temporarily.
Legitimate reasons for absence include:
- Severe anxiety or panic attacks
- Depression or suicidal thoughts
- Family emergency or crisis
- Domestic violence
- Medical or mental breakdown
- Misunderstood orders
- Fear of command retaliation
- Confusion during PCS or training transfers
None of these reflect “intent to remain away permanently.”
Maximum Punishments Under Article 85
Desertion carries severe penalties depending on the type and circumstances:
Desertion With Intent to Remain Away Permanently
- Dishonorable discharge
- Confinement up to 5 years
- Total forfeitures
Desertion to Avoid Hazardous Duty or Important Service
- Confinement up to 3 years
- Bad-conduct or dishonorable discharge
Attempted Desertion
- Confinement up to 2 years
Historically, desertion during wartime could carry the death penalty, but this is no longer pursued in modern courts-martial.
Why Article 85 Allegations Are Common in Florida
Florida’s military environment leads to elevated desertion allegations due to:
- High-stress aviation and special operations training pipelines
- Large young enlisted population
- Relationship and family instability
- Nightlife and alcohol issues
- Frequent PCS transitions
- Domestic violence or breakups leading to emotional crises
- Civilian police taking service members into custody without notifying command
- Confusion about reporting during hurricane evacuations
Most Florida desertion cases involve confusion, mental health struggles, or administrative mistakes—not true intent to desert.
Common Real-World Article 85 Scenarios
1. Leaving Due to Mental Health Crisis
Service members overwhelmed by stress disappear temporarily and later return voluntarily.
2. Fear of Hazing or Retaliation
A toxic command environment drives members to flee temporarily.
3. Domestic Violence or Dangerous Home Conditions
Leaving to escape abuse or protect family—NOT desertion.
4. Confusion During PCS or Training Transfers
Incorrect report dates or misunderstood instructions lead to unauthorized absence allegations.
5. Being Arrested by Civilian Police
Some members are absent because they were detained—and command was never notified.
6. Failure to Return After Liberty
Common during Florida weekend trips, cruises, and nightlife outings.
7. Attempting to Avoid Deployment
Prosecutors sometimes overcharge AWOL as “desertion to avoid hazardous duty.”
8. Substance Abuse Relapse
Members spiraling with addiction may temporarily disappear.
9. Going “Home” for Personal Crisis
Young service members often panic and flee during emotional stress.
10. Family-Stress-Driven Disappearance
Illness, divorce, custody disputes, or emergencies trigger sudden absences.
How Article 85 Investigations Work
Desertion investigations typically involve:
- NCIS / OSI / CID / CGIS
- Command inquiries
- Unit-level documentation
- Travel, banking, and phone record analysis
- Local Florida law enforcement (if detained off-base)
Common Investigative Failures
- No evaluation of mental health status
- No review of family/emergency circumstances
- No analysis of confusing orders or report times
- Assuming “intent to remain away permanently” without evidence
- Overcharging simple AWOL cases as desertion
- Command bias and retaliation
- Misinterpretation of digital location data
Most “desertion” cases collapse once the actual intent—or lack thereof—is exposed.
Defense Strategies for Article 85 Desertion
1. Attack the Intent Element
The accused had no intention to remain away permanently or avoid service. This is the strongest defense.
2. Present Mental Health Evidence
Panic attacks, depression, PTSD, suicidal ideation, and emotional breakdowns undermine desertion claims.
3. Show Administrative or Command Error
- Incorrect reporting dates
- Conflicting orders
- Poor leadership guidance
4. Florida-Specific Defense Angles
- Hurricane evacuations causing missed report times
- Arrest by Florida police departments not reporting to command
- Nightlife-related detainment without notification
- Transportation failures in Florida’s dispersed base locations
5. Prove the Absence Was Temporary
Return to duty—especially voluntary—undercuts “permanent intent.”
6. Demonstrate Fear or Duress
- Escaping abusive situations
- Fleeing hazing or harassment
7. Use Character and Service Record Evidence
A strong record contradicts claims of intent to abandon service.
8. Highlight Miscommunication
Many cases boil down to confusion—not desertion.
Pro Tips for Anyone Accused of Desertion
- Do NOT speak to investigators or leadership about your absence.
- Document your mental state and reasons for leaving immediately.
- Gather witness statements from friends or family.
- Collect medical and mental health records.
- Preserve texts, call logs, GPS data, and travel receipts.
- Avoid talking about the case with coworkers.
- Hire a civilian defense lawyer before giving ANY statement.
Related UCMJ Articles
- UCMJ Article Hub
- Article 86 – Absence Without Leave (AWOL)
- Article 87 – Missing Movement
- Article 92 – Failure to Obey an Order
- Article 95 – Resistance, Flight, Escape
Article 85 UCMJ – Frequently Asked Questions
What is the difference between AWOL and Desertion?
AWOL is unauthorized absence. Desertion requires proof that the accused intended to remain away permanently or avoid duty. Proving intent is extremely difficult for prosecutors.
Can mental health problems defeat a desertion charge?
Absolutely. Depression, anxiety, PTSD, and emotional breakdowns often explain unauthorized absences and negate “intent to desert.” These are among the strongest defenses.
What if I returned voluntarily?
Voluntary return makes it significantly harder for the government to prove intent to remain away permanently. This often results in reduced charges.
Can desertion be charged during peacetime?
Yes. Article 85 applies in both war and peacetime, although punishments may differ.
Why hire Gonzalez & Waddington?
We are world-renowned military defense lawyers with decades of experience defeating desertion and AWOL cases. We expose command failures, rebuild intent narratives, and use mental health, digital evidence, and powerful cross-examination to dismantle prosecutions.
Final Takeaways
Article 85 desertion is an extremely serious charge—but most cases are rooted in confusion, emotional distress, mental health struggles, or breakdowns in communication, not a genuine intent to abandon service. With strong legal strategy, many desertion cases can be downgraded or defeated entirely.
Your silence protects you.
Your lawyer shields you.
Your strategy determines your future.