What Is UCMJ Article 85?
Article 85 of the Uniform Code of Military Justice defines and criminalizes the offense of desertion—a serious offense in the Armed Forces. Desertion occurs when a service member intentionally leaves their place of duty or fails to report for active duty with the specific intent to remain away permanently, or to shirk hazardous or important duties.
Unlike AWOL (absence without leave) under Article 86, Article 85 requires proof of intent to abandon military service permanently or avoid significant military obligations. This key difference means that even a short unauthorized absence could result in charges of desertion if prosecutors believe intent to desert can be shown.
What Must Be Proven to Find Someone Guilty of Desertion?
To convict a member of the Armed Forces under UCMJ Article 85, a military court must find three elements beyond a reasonable doubt:
- The accused left their unit or failed to report to their place of duty.
- The absence was without proper authority.
- The accused had the specific intent to remain away permanently or to shirk hazardous duty or important service.
If these elements are satisfied, the accused may be found guilty of desertion, even if they later return voluntarily or are apprehended.
What Are the Types of Desertion Under Article 85?
There are three primary forms of desertion recognized under military law:
1. Desertion with Intent to Remain Away Permanently
This involves leaving one’s place of duty or active duty station without any plan to return. Even if the service member eventually comes back, the intent at the time of departure is what matters.
2. Desertion to Avoid Hazardous Duty or Important Service
If a service member deserts to avoid deployment, combat, or other critical assignments, the charge may be elevated based on the hazardous duty avoided.
3. Attempted Desertion
Even if desertion is not completed, a member of the Armed Forces may be charged with attempted desertion if they take steps toward leaving with the intent not to return.
Each variation of Article 85 carries different consequences, with added penalties if aggravating circumstances—like time of war—apply.
What Is the Maximum Punishment for Desertion?
The maximum punishment under UCMJ Article 85 depends on the context of the unauthorized absence, particularly whether the conduct occurred during a time of war.
In Peacetime:
- Dishonorable discharge
- Forfeiture of all pay and allowances
- Up to 5 years of confinement
In Time of War:
- Life imprisonment
- In rare cases, the death penalty
- Permanent loss of veterans’ benefits and civil rights
Even outside of combat, the consequences for charges of desertion are devastating to a military career and civilian future. A conviction can permanently stain one’s record, disrupt families, and block employment opportunities.
How Does Mental Health Affect Desertion Charges?
Mental health is often a critical component in Article 85 defense cases. Conditions such as PTSD, anxiety disorders, depression, and trauma may impact a service member’s decision-making, creating challenges in proving specific intent.
An experienced military defense attorney will investigate:
- Whether a mental health diagnosis was in place prior to the absence
- The member’s behavioral history and service record
- Whether there was coercion, distress, or confusion at the time of the alleged desertion
In these cases, defense counsel may use medical testimony to argue that the accused did not form the intent required to be guilty of desertion. This can lead to reduced charges or full dismissal.
What Happens at a Court-Martial for Desertion?
A court-martial is the military’s version of a criminal trial. When facing charges of desertion, the accused is entitled to legal representation by a JAG officer or a private military lawyer.
During the trial, the government must prove all elements of Article 85. The defense can present evidence about:
- The unauthorized absence
- Mental health concerns
- The specific intent of the service member
- Any failures in command communication or legal processing
An effective defense strategy often includes reviewing command documentation, service records, medical evaluations, and commissioned officer testimony.
Why You Need a Military Defense Attorney
A conviction for desertion under UCMJ Article 85 is not just a military issue—it can destroy your life. You may face:
- Dishonorable discharge
- Loss of benefits
- Forfeiture of pay
- Civilian criminal stigma
- Ineligibility for many government or security jobs
That’s why you need a military defense attorney with years of experience navigating complex cases involving desertion, AWOL, and other UCMJ violations. The right legal counsel can provide strong advocacy, build an aggressive defense strategy, and protect your attorney-client relationship from start to finish.
Schedule a Free Consultation with a Military Lawyer
At The Military Defense Firm, we represent members of the Armed Forces in all branches facing charges of desertion, AWOL, and other serious offenses under the Uniform Code of Military Justice. Our attorneys are former JAGs with deep knowledge of military law, criminal defense, and court-martial procedures.
If you’ve been accused under UCMJ Article 85, don’t face it alone. Get a trusted, proven defense team on your side.
Contact us online for a free consultation. We’ll review your case and explain your legal options—confidentially and without obligation.
