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Article 85, UCMJ. DESERTION

(a) Any member of the armed forces who—

(1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently;
(2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or
(3) without being regularly separated from one of the armed forces enlists  or accepts an appointment in the same or another one 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; is guilty of desertion.

(b) Any commissioned officer of the armed forces who, after tender of his resignation and before notice of its acceptance, quits his post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion.

(c) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment, other than death, as a court-martial may direct.

Elements.

(1) Desertion with intent to remain away permanently.

(a ) That the accused absented himself or herself from his or her unit, organization, or place of duty;
(b) That such absence was without authority;
(c) That the accused, at the time the absence began or at some time during the absence, intended to remain away from his or her unit, organization, or place of duty permanently; and
(d) That the accused remained absent until the date alleged.
[Note: If the absence was terminated by apprehension, add the following element]
(e) That the accused’s absence was terminated by apprehension.

(2) Desertion with intent to avoid hazardous duty or to shirk important service.

(a ) That the accused quit his or her unit, organization, or other place of duty;
(b) That the accused did so with the intent to avoid a certain duty or shirk a certain service;
(c) That the duty to be performed was hazardous or the service important;
(d) That the accused knew that he or she would be required for such duty or service; and
(e) That the accused remained absent until the date alleged.

(3) Absence from unit, organization, or place of duty.

(a ) That the accused absented himself or herself from his or her unit, organization, or place of duty at which he or she was required to be;
(b) That the absence was without authority from anyone competent to give him or her leave; and
(c) That the absence was for a certain period of time.
[Note: if the absence was terminated by apprehension, add the following element]
( d ) That the absence was terminated by apprehension.

(4) Abandoning watch or guard.

(a) That the accused was a member of a guard, watch, or duty;
(b) That the accused absented himself or herself from his or her guard, watch, or duty section;
(c) That absence of the accused was without authority; and
[Note: If the absence was with intent to abandon the accused’s guard, watch, or duty section, add the following element]
(d) That the accused intended to abandon his or her guard, watch, or duty section.

(5) Absence from unit, organization, or place of duty with intent to avoid maneuvers or field exercises.

(a) That the accused absented himself or herself from his or her unit, organization, or place of duty at which he or she was required to be;
(b) That the absence of the accused was without authority;
(c) That the absence was for a certain period of time;
(d) That the accused knew that the absence would occur during a part of a period of maneuvers or field exercises; and
(e) That the accused intended to avoid all or part of a period of maneuvers or field exercises.

For more information on this offense including the maximum punishment, potential defenses, and a discussion of the strengths and weaknesses of the prosecution’s case consult with an experienced military lawyer.

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