Desertion is an aggravated type of Unauthorized Absence (UA) or Absence Without Leave (AWOL). Military prosecutors charge desertion under UCMJ Article 85.
Article 85 provides:
(1) without authority, goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently; or
(2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service
The charge of desertion is more aggravated if it is committed in time of war or to avoid hazardous service.
The key to any desertion charge is the intent or mental state of the service member. Since it is usually difficult to prove what someone is actually thinking at any given time, prosecutors will look to circumstantial evidence to prove the intent to remain away permanently. Factors like destruction of uniforms or an identification card, changing a name or SSN, remarks of intent, failure of the member to turn himself in when he had the opportunity to do so, moving to foreign countries, and remaining absent for many years are the types of circumstantial evidence that can help to establish intent to remain away permanently.
Almost always, the best course of action for a member in an unauthorized absence status is to return to military authority voluntarily for resolution of the situation. Very few people can live an entire lifetime in an unauthorized absence status without someday being forced to answer to authorities. It is particularly difficult today, with the advent of pervasive and interconnected databases that reflect unauthorized absence status.
Most unauthorized absence cases are resolved administratively. However, a command always has the option of resolving more aggravated cases at court-martial. Many unauthorized absence cases have important extenuating and mitigating circumstances. When presented properly, by a competent military lawyer, such circumstances can reduce punishment or lead to a better characterization of discharge in the event of administrative discharge.
If you would like to discuss your case with a skilled military lawyer, Jeff Meeks and Bruce White have over 45 years of experience. They have effectively resolved thousands of unauthorized absence and desertion cases. Call now for your free consultation.