§ Article 85 : Desertion

Article 85 of the UCMJ (10 U.S.C. § 885) punishes absence without authority with intent to remain away permanently; quitting one’s unit, organization, or place of duty with intent to avoid hazardous duty or shirk important service; enlisting or accepting an appointment without fully disclosing that one has not been regularly separated from an armed force; entering foreign armed service without authorization; and, for commissioned officers, quitting one’s post or proper duties with intent to remain away permanently after tendering a resignation and before notice of its acceptance.

Who It Applies To

Desertion with intent to remain away permanently: any member of the armed forces who, without authority, goes or remains absent from their unit, organization, or place of duty with intent to remain away permanently.

Desertion to avoid hazardous duty or shirk important service: any member of the armed forces who quits their unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service.

Desertion before notice of acceptance of resignation: any commissioned officer who, after tendering a resignation and before notice of its acceptance, quits their post or proper duties without leave and with intent to remain away permanently.

Article 85 also states that a member who, without being regularly separated, enlists or accepts an appointment in the same or another armed force without fully disclosing that fact, or who enters a foreign armed service without authorization, is guilty of desertion. The Manual explains that this provision does not state a separate offense: it is a rule of evidence from which an intent to remain away permanently may be inferred.

What It Covers

Desertion with intent to remain away permanently

1. The accused absented themselves from their unit, organization, or place of duty.
2. The absence was without authority.
3. At the time the absence began, or at some time during it, the accused intended to remain away permanently.
4. The accused remained absent until the date alleged.
5. Where alleged: the absence was terminated by apprehension.

Desertion to avoid hazardous duty or shirk important service

1. The accused quit their unit, organization, or other place of duty.
2. The accused did so with the intent to avoid a certain duty or shirk a certain service.
3. The duty was hazardous or the service important.
4. The accused knew they would be required for that duty or service.
5. The accused remained absent until the date alleged.

Desertion before notice of acceptance of resignation

1. The accused was a commissioned officer who had tendered a resignation.
2. Before receiving notice of its acceptance, the accused quit their post or proper duties.
3. The accused did so with the intent to remain away permanently from those duties.
4. The accused remained absent until the date alleged.
5. Where alleged: the absence was terminated by apprehension.

Attempted desertion

1. The accused did a certain overt act.
2. The act was done with the specific intent to desert.
3. The act amounted to more than mere preparation.
4. The act apparently tended to effect the commission of desertion.

Related rules

• The intent to remain away permanently may be formed at any time during an unauthorized absence and may be proved by circumstantial evidence.
• A prompt repentance and return may matter in extenuation, but is not a defense.
• Proof of an unauthorized absence, even a long one, does not by itself prove desertion.
• Entries on documents describing the accused as a “deserter” are not evidence of intent to desert.

Maximum Punishment

Maximum authorized punishment.

• Completed or attempted desertion with intent to avoid hazardous duty or to shirk important service: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
• Other completed or attempted desertion, terminated by apprehension: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.
• Other completed or attempted desertion, terminated otherwise: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.
• In time of war: death or such other punishment as a court-martial may direct.

Sentencing parameters.

• Desertion with intent to avoid hazardous duty or shirk important service: Category 2 (1–36 months).
• Other desertion terminated by apprehension: Category 2 (1–36 months).
• Other desertion terminated otherwise: Category 1 (0–12 months).
• Desertion in time of war: a sentencing-criteria offense (no numbered category). Sentencing parameters and criteria do not apply to the decision whether to impose death.

The newer sentencing rules apply, subject to the capital-case rules, when the accused is convicted only of offenses committed after 27 December 2023. See How UCMJ Sentencing Rules Apply. The maximum authorized punishment and the applicable sentencing framework do not predict the sentence in a particular case.

Related and Distinguished

Desertion differs from absence without leave (Article 86) by its required intent — to remain away permanently, or to avoid hazardous duty or shirk important service. Unauthorized absence alone, however long, is an Article 86 offense unless that intent is proved.

What the Provision Does

Desertion is the most serious form of unauthorized absence: an absence combined with an intent to remain away permanently, or to avoid hazardous duty or important service. Article 85 authorizes higher maximum punishments than Article 86, including death in time of war.

History

The statutory language traces to the original 1950 Uniform Code of Military Justice and was re-enacted in its current form on August 10, 1956.

Sources

• 10 U.S.C. § 885 (Article 85, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, Part IV, ¶ 9
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12D