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Article 86, 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 herselffrom his or her unit, organization, or place of
duty;
(b) That such absence was without authority;
(c) That the accused, at the time the absencebegan or at some time during the absence, intended
to remain away from his or her unit, organization, orplace of duty permanently; and
(d) That the accused remained absent until thedate alleged.
[Note: If the absence was terminated by apprehension,
add the following element]
(e) That the accused’s absence was terminatedby apprehension.

(2) Desertion with intent to avoid hazardous dutyor 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 toavoid a certain duty or shirk a certain service;
(c) That the duty to be performed was hazardousor the service important;
(d) That the accused knew that he or she wouldbe required for such duty or service; and
(e) That the accused remained absent until thedate alleged.

(3) Absence from unit, organization, or place ofduty.

(a) That the accused absented himself or herselffrom 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 oftime.
[Note: if the absence was terminated by apprehension, add thefollowing element]
( d ) That the absence was terminated byapprehension.

(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 herselffrom his or her guard, watch, or duty section;
(c) That absence of the accused was withoutauthority; and
[Note: If the absence was with intent to abandon the accused’sguard, watch, or duty section, add the following element]
(d) That the accused intended to abandon his orher guard, watch, or duty section.

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

(a) That the accused absented himself or herselffrom 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 withoutauthority;
(c) That the absence was for a certain period oftime;
(d) That the accused knew that the absence would occur during a part of a period of maneuversor field exercises; and
(e) That the accused intended to avoid all orpart 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 strength or weakness of the prosecution’s case consult with an experienced military lawyer.

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