Part IV · Punitive Articles

Article 85. Desertion · MCM ¶ 9

2024 Manual for Courts-Martial, United States

Recent revisions Summary of changes
(a) Text of statute.
(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.
(b) 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.
Practice Note
[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) Desertion before notice of acceptance of resignation.
(a) That the accused was a commissioned officer of an armed force of the United States, and had tendered his or her resignation;
(b) That before he or she received notice of the acceptance of the resignation, the accused quit his or her post or proper duties;
(c) That the accused did so with the intent to remain away permanently from his or her post or proper duties; and
(d) That the accused remained absent until the date alleged.
Practice Note
[Note: If the absence was terminated by apprehension, add the following element]
(e) That the accused’s absence was terminated by apprehension.
(4) Attempted desertion.
(a) That the accused did a certain overt act;
(b) That the act was done with the specific intent to desert;
(c) That the act amounted to more than mere preparation; and
(d) That the act apparently tended to effect the commission of the offense of desertion.
(c) Explanation.
(1) Desertion with intent to remain away permanently.
(a) In general. Desertion with intent to remain away permanently is complete when the person absents himself or herself without authority from his or her unit, organization, or place of duty, with the intent to remain away therefrom permanently. A prompt repentance and return, while material in extenuation, is no defense. It is not necessary that the person be absent entirely from military jurisdiction and control.
(b) Absence without authority —inception, duration, termination. See subparagraph 10.c.
(c) Intent to remain away permanently.
(i) The intent to remain away permanently from the unit, organization, or place of duty may be formed any time during the unauthorized absence. The intent need not exist throughout the absence, or for any particular period of time, as long as it exists at some time during the absence.
(ii) The accused must have intended to remain away permanently from the unit, organization, or place of duty. When the accused had such an intent, it is no defense that the accused also intended to report for duty elsewhere, or to enlist or accept an appointment in the same or a different armed force.
(iii) The intent to remain away permanently may be proved by circumstantial evidence. Among the circumstances from which an inference may be drawn that an accused intended to remain absent permanently are: that the period of absence was lengthy; that the accused attempted to, or did, dispose of uniforms or other military property; that the accused purchased a ticket for a distant point or was arrested, apprehended, or surrendered a considerable distance from the accused’s station; that the accused could have conveniently surrendered to military control but did not; that the accused was dissatisfied with the accused’s unit, ship, or with military service; that the accused made remarks indicating an intention to desert; that the accused was under charges or had escaped from confinement at the time of the absence; that the accused made preparations indicative of an intent not to return (for example, financial arrangements); or that the accused enlisted or accepted an appointment in the same or another armed force without disclosing the fact that the accused had not been regularly separated, or entered any foreign armed service without being authorized by the United States. On the other hand, the following are included in the circumstances which may tend to negate an inference that the accused intended to remain away permanently: previous long and excellent service; that the accused left valuable personal property in the unit or on the ship; or that the accused was under the influence of alcohol or drugs during the absence. These lists are illustrative only.
(iv) Entries on documents, such as personnel accountability records, which administratively refer to an accused as a “deserter” are not evidence of intent to desert.
(v) Proof of, or a plea of guilty to, an unauthorized absence, even of extended duration, does not, without more, prove guilt of desertion.
(d) Effect of enlistment or appointment in the same or a different armed force. Article 85(a)(3) does not state a separate offense. Rather, it is a rule of evidence by which the prosecution may prove intent to remain away permanently. Proof of an enlistment or acceptance of an appointment in a Service without disclosing a preexisting duty status in the same or a different service provides the basis from which an inference of intent to permanently remain away from the earlier unit, organization, or place of duty may be drawn. Furthermore, if a person, without being regularly separated from one of the armed forces, enlists or accepts an appointment in the same or another armed force, the person’s presence in the military service under such an enlistment or appointment is not a return to military control and does not terminate any desertion or absence without authority from the earlier unit or organization, unless the facts of the earlier period of service are known to military authorities. If a person, while in desertion, enlists or accepts an appointment in the same or another armed force, and deserts while serving the enlistment or appointment, the person may be tried and convicted for each desertion.
(2) Quitting unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service.
(a) Hazardous duty or important service. “Hazardous duty” or “important service” may include service such as duty in a combat or other dangerous area; embarkation for certain foreign or sea duty; movement to a port of embarkation for that purpose; entrainment for duty on the border or coast in time of war or threatened invasion or other disturbances; strike or riot duty; or employment in aid of the civil power in, for example, protecting property, or quelling or preventing disorder in times of great public disaster. Such services as drill, target practice, maneuvers, and practice marches are not ordinarily “hazardous duty or important service.” Whether a duty is hazardous or a service is important depends upon the circumstances of the particular case, and is a question of fact for the court-martial to decide.
(b) Quits. “Quits” in Article 85 means “goes absent without authority.”
(c) Actual knowledge. Article 85(a)(2) requires proof that the accused actually knew of the hazardous duty or important service. Actual knowledge may be proved by circumstantial evidence.
(3) Attempting to desert. Once the attempt is made, the fact that the person desists, voluntarily or otherwise, does not cancel the offense. The offense is complete, for example, if the person, intending to desert, hides in an empty freight car on a military reservation, intending to escape by being taken away in the car. Entering the car with the intent to desert is the overt act. For a more detailed discussion of attempts, see paragraph 4. For an explanation concerning intent to remain away permanently, see paragraph 9.c.(1)(c).
(4) Prisoner with executed punitive discharge. A prisoner whose dismissal or dishonorable or bad-conduct discharge has been executed is not a “member of the armed forces” within the meaning of Articles 85 or 86, although the prisoner may still be subject to military law under Article 2(a)(7). If the facts warrant, such a prisoner could be charged with escape from confinement under Article 87a or an offense under Article 134.
(d) Maximum punishment.
(1) 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.
(2) Other cases of completed or attempted desertion.
(a) Terminated by apprehension. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.
(b) Terminated otherwise. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.
(3) In time of war. Death or such other punishment as a court-martial may direct.
(e) Sample specifications.
(1) Desertion with intent to remain away permanently. In that __________ (personal jurisdiction data), did, on or about _____ 20 __, (a time of war) without authority and with intent to remain away therefrom permanently, absent himself/herself from (his) (her) (unit) (organization) (place of duty), to wit: __________, located at (__________), and did remain so absent in desertion until ((he) (she) was apprehended) on or about _____ 20 __.
(2) Desertion with intent to avoid hazardous duty or shirk important service. In that __________ (personal jurisdiction data), knowing that (he) (she) would be required to perform (hazardous duty) (important service), namely: __________, did, on or about _____ 20 __, (a time of war) with intent to (avoid said hazardous duty) (shirk said important service), quit (his) (her) (unit) (organization) (place of duty), to wit: __________, located at (__________), and did remain so absent in desertion until on or about _____ 20 __.
(3) Desertion prior to acceptance of resignation. In that __________ (personal jurisdiction data) having tendered (his) (her) resignation and prior to due notice of the acceptance of the same, did, on or about _____ 20 __, (a time of war) without leave and with intent to remain away therefrom permanently, quit (his) (her) (post) (proper duties), to wit: __________, and did remain so absent in desertion until ((he) (she) was apprehended) on or about _____ 20 __.
(4) Attempted desertion. In that __________ (personal jurisdiction data), did (at/on board—location), on or about _____ 20 __, (a time of war) attempt to (absent himself/herself from (his) (her) (unit) (organization) (place of duty) to wit: __________, without authority and with intent to remain away therefrom permanently) (quit (his) (her) (unit) (organization) (place of duty), to wit: __________, located at __________, with intent to (avoid hazardous duty) (shirk important service) namely ____) (_____).
Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

(1) In time of war: Death or other lawful punishment. (Criteria)

(2) Terminated by apprehension: DD, TF, 3 years, E-1. (Category 2)

(3) Otherwise: DD, TF, 2 years, E-1. (Category 1)

Sample specification

In that __________ (personal jurisdiction data) did, on or about __________, (a time of war) without authority and with intent to remain away therefrom permanently, absent himself/herself from (his) (her) (unit) (organization) (place of duty), to wit: __________, located at (__________), and did remain so absent in desertion until ((he) (she) was apprehended) on or about __________.

Elements

(1) That (state the time and place alleged), the accused absented (himself) (herself) from (his) (her) (unit) (organization) (place of duty), that is, (state the name of the unit, organization, or place of duty);

(2) That the accused remained absent until (state the alleged date of termination of absence);

(3) That the absence was without authority; (and)

(4) That the accused, at the time the absence began or at some time during the absence, intended to remain away from (his) (her) (unit) (organization) (place of duty) permanently; [and]

NOTE 2. Aggravating factors alleged. In the event one or more of the aggravating factors are alleged, the military judge must advise the court members of the aggravating factors as elements.

((5)) That the accused’s absence was terminated by apprehension; [and]

((6)) That the accused’s absence was in time of war.

Definitions & other instructions

The intent to remain away permanently from the (unit) (organization) (place of duty) may be formed any time during the unauthorized absence. The intent need not exist throughout the absence, or for any particular period of time, as long as it exists at some time during the absence.

(A prompt repentance and return, while material in extenuation, is no defense.) (It is not necessary that the accused be absent entirely from military jurisdiction and control.)

In determining whether the accused had the intent to remain away permanently, you should consider the circumstances surrounding the beginning, length, and termination of the charged absence and how those circumstances might bear upon the element of intent. No one factor is controlling and each of them should be considered by you.

NOTE 3. Dropped from the rolls (DFR). If the phrase “DFR” or “dropped from the rolls as a deserter” appears in evidence, the following additional instruction should be given:

The term (DFR) (dropped from the rolls as a deserter), as contained in (Prosecution Exhibit __) (the testimony of ________), is purely an administrative term. You cannot consider this term as evidence of an intent on the part of the accused to remain away permanently.

NOTE 4. When desertion terminated by apprehension is alleged. The following instructions are pertinent to the issue of termination by apprehension:

“Apprehension” means that the accused’s return to military control was involuntary. It must be shown that neither the accused nor persons acting at the accused’s request initiated the accused’s return.

(That the accused was apprehended by civilian authorities, for a civilian violation, and was thereafter turned over to military control by the civilian authorities, does not necessarily indicate that the accused’s return was involuntary. Such return may be deemed involuntary if, after the accused was apprehended, such civilian authorities learned of the accused’s military status from someone other than the accused or persons acting at the accused’s request.)

(In addition, the return may be involuntary if, after being apprehended by civilian authorities, the accused disclosed (his) (her) identity as a result of a desire to avoid trial, prosecution, punishment, or other criminal action at the hands of such civilian authorities. However, if the accused disclosed (his) (her) identity to the civilian authorities because of the accused’s desire to return to military control, the accused’s return should not be deemed involuntary or by apprehension.)

(The arrest of an accused by civilian authorities does not, in the absence of special circumstances, terminate (his) (her) unauthorized absence by apprehension where the record does not show such apprehension to have been connected with or done on behalf of the military authorities. Thus, in the absence of special circumstances, mere apprehension by civilian authorities does not sustain the government’s burden of showing that the return to military control was involuntary.)

NOTE 5. When apprehension is contested. When the question of apprehension is at all controverted, the following instruction must be given. If both apprehension and time of war are alleged, the instruction must be modified to reflect that the accused may be convicted of desertion even if neither of the aggravating circumstances are alleged:

You will note that of the elements that I have listed, only the last element concerns apprehension. To convict the accused of desertion terminated by apprehension, you must be convinced beyond a reasonable doubt of all the elements, including the element of apprehension. If you are convinced of all the elements except the element of apprehension, you may convict the accused of desertion, but not of desertion terminated by apprehension.

NOTE 6. Voluntary termination and casual presence. When some evidence has been presented that raises the issue of voluntary termination of an unauthorized absence prior to the end date alleged in the specification (see US v. Rogers, 59 MJ 584 (ACCA 2003)), the following instruction should be given:

There has been some evidence that the accused was present (on a military (installation) (base) (camp) (post)) (in a military facility) (at/on board—location) prior to the end date alleged in (The) Specification _____ of (The) (Additional) Charge _____. Casual presence for personal reasons (on a military (installation) (base) (camp) (post)) (in a military facility) (at/on board—location), without more, does not terminate an unauthorized absence. To voluntarily terminate an unauthorized absence, the absentee must physically present (himself/herself) to someone with authority to apprehend (him/her), that is, a commissioned officer, a noncommissioned officer, or a military policeman (or __________) with the intent to return to military duty. The absentee must properly identify (himself/herself) and disclose (his/her) absentee status and submit to the control exercised over (him) (her). If the absentee does not disclose (his/her) status, the person to whom the absentee presented (himself/herself) must have been aware already of the absentee’s status, or had a duty to inquire and could have, with reasonable diligence, determined the absentee’s status.

The prosecution bears the burden of proof to establish beyond a reasonable doubt that the accused did not voluntarily terminate (his) (her) absentee status. In order to find the accused guilty of an unauthorized absence for the entire period alleged in the specification, you must be convinced beyond a reasonable doubt that the accused did not voluntarily terminate (his) (her) absentee status prior to the end date alleged in the specification.

(If you find that the accused went from or remained absent without authority as alleged, but voluntarily terminated (his) (her) absentee status prior to the end date alleged, but later absented (himself) (herself) from (his) (her) (unit) (organization) (place of duty at which (he) (she) was required to be), you may find the accused guilty, by exceptions and substitutions, of two or more separate unauthorized absences under one specification, provided that each unauthorized absence is included within the overall period alleged in the specification.)

NOTE 7. Multiple unauthorized absences under single specification. An accused may be found guilty of two or more separate unauthorized absences under one specification, provided that each absence is included within the period alleged in the specification and provided that the accused was not mislead. If an accused is found guilty of two or more unauthorized absences under a single specification, the maximum authorized punishment shall not exceed that authorized if the accused had been found guilty as charged in the specification.
NOTE 8. Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), and Instruction 7-15, Variance, are ordinarily appropriate. If evidence of previous convictions or other acts of misconduct have been admitted as bearing on intent, the applicable portion of Instruction 7-13-1, Other Crimes, Wrongs or Acts Evidence, must be given.
Source: Instruction 3a-9-1 · view original on jagcnet.army.mil

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

(1) In time of war: Death or other lawful punishment. (Criteria)

(2) Otherwise: DD, TF, 5 years, E-1. (Category 2)

Sample specification

In that __________ (personal jurisdiction data), knowing that (he) (she) would be required to perform (hazardous duty) (important service), namely: ___________, did, on or about __________, (a time of war) with intent to (avoid said hazardous duty) (shirk said important service), quit (his) (her) (unit) (organization) (place of duty), to wit: ___________, located at (__________), and did remain so absent in desertion until on or about __________.

Elements

:

(1) That (state the time and place alleged), the accused quit (his) (her) (unit) (organization) (place of duty), that is, (state the name of the unit, organization, or place of duty);

(2) That the accused did so with intent to (avoid a certain duty) (shirk a certain service), that is, __________;

(3) That the (duty to be performed was hazardous) (service to be performed was important);

(4) That the accused knew that (he) (she) would be required for such (duty) (service); (and)

(5) That the accused remained so absent until __________; [and]

NOTE 2. Aggravating factor alleged. If the specification alleges the offense occurred in “a time of war,” include the following element.

[(6)] That the accused’s absence was in time of war.

Definitions & other instructions

“Quit” means to go absent without authority.

(“Hazardous duty” means a duty that involves danger, risk, or peril to the individual performing the duty. The conditions existing at the time the duty is to be performed determine whether the duty is dangerous, risky, or perilous.)

(“Important service” means service that is more significant than the ordinary everyday service of members of the Armed Forces.)

Whether a (duty is hazardous) (service is important) is a question of fact for you to determine and depends upon the circumstances of the particular case. You should consider all the facts and circumstances of the case, including, but not limited to, the tactical situation, the area, the mission, (and) the nature of the duty and its relationship to the mission, (and) (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides).

NOTE 3. Offenses separate. The offenses of desertion with intent to avoid hazardous duty and desertion with intent to shirk important service are separate offenses. Neither is included in the other.
NOTE 4. Other instructions. Instruction 7-3, Circumstantial Evidence (Intent and Knowledge), is ordinarily applicable.
Source: Instruction 3a-9-2 · view original on jagcnet.army.mil

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

(1) If terminated by apprehension: Dismissal, TF, 3 years. (Category 2)

(2) If terminated otherwise: Dismissal, TF, 2 years. (Category1)

(3) In time of war: Death or other lawful punishment. (Criteria)

Sample specification

In that __________ (personal jurisdiction data), having tendered (his) (her) resignation and prior to due notice of the acceptance of the same, did, on or about __________, (a time of war) without leave and with intent to remain away therefrom permanently, quit (his) (her) (post) (proper duties), to wit: __________, and did remain so absent in desertion until ((he) (she) was apprehended) on or about __________.

Elements

(1) That the accused was a commissioned officer of the United States (Army) (__________) and had tendered (his) (her) resignation;

(2) That (state the time and place alleged), and before (he) (she) received notice of the acceptance of the resignation, the accused quit (his) (her) (post) (proper duties), that is, (state the post or proper duties alleged);

(3) That the accused did so with the intent to remain away from (his) (her) (post) (proper duties) permanently, (and)

(4) That the accused remained so absent until (state the date alleged); [and]

NOTE 2. Aggravating factors alleged. In the event one or more of the aggravating factors are alleged, the military judge must advise the court members of the aggravating factors as elements.

((5)) That the accused’s absence was terminated by apprehension; [and]

((6)) That the accused’s absence was in time of war.

Definitions & other instructions

“Quit” means to go absent without authority.

The intent to remain away permanently from the (post) (proper duties) may be formed any time during the unauthorized absence. The intent need not exist throughout the absence, or for any particular period of time, as long as it exists at some time during the absence.

(A prompt repentance and return, while material in extenuation, is no defense.) (It is not necessary that the accused be absent entirely from military jurisdiction and control.)

In determining whether the accused had the intent to remain away permanently, you should consider the circumstances surrounding the beginning, length, and termination of the charged absence and how those circumstances might bear upon the element of intent. No one factor is controlling and each of them should be considered by you.

NOTE 3. When desertion terminated by apprehension is alleged. The following instructions are pertinent to the issue of termination by apprehension:

“Apprehension” means that the accused’s return to military control was involuntary. It must be shown that neither the accused nor persons acting at the accused’s request initiated the accused’s return.

(That the accused was apprehended by civilian authorities, for a civilian violation, and was thereafter turned over to military control by the civilian authorities, does not necessarily indicate that the accused’s return was involuntary. Such return may be deemed involuntary if, after the accused was apprehended, such civilian authorities learned of the accused’s military status from someone other than the accused or persons acting at the accused’s request.)

(In addition, the return may be involuntary if, after being apprehended by civilian authorities, the accused disclosed (his) (her) identity as a result of a desire to avoid trial, prosecution, punishment, or other criminal action at the hands of such civilian authorities. However, if the accused disclosed (his) (her) identity to the civilian authorities because of the accused’s desire to return to military control, the accused’s return should not be deemed involuntary or by apprehension.)

(The arrest of an accused by civilian authorities does not, in the absence of special circumstances, terminate (his) (her) unauthorized absence by apprehension where the record does not show such apprehension to have been connected with or done on behalf of the military authorities. Thus, in the absence of special circumstances, mere apprehension by civilian authorities does not sustain the government’s burden of showing that the return to military control was involuntary.)

NOTE 4. When apprehension is contested. When the question of apprehension is at all controverted, the following instruction must be given. If both apprehension and time of war are alleged, the instruction must be modified to reflect that the accused may be convicted of desertion even if neither of the aggravating circumstances are alleged:

You will note that of the elements that I have listed, only the last element concerns apprehension. To convict the accused of desertion terminated by apprehension, you must be convinced beyond a reasonable doubt of all the elements, including the element of apprehension. If you are convinced of all the elements except the element of apprehension, you may convict the accused of desertion, but not of desertion terminated by apprehension.

NOTE 5. Other misconduct. If evidence of previous convictions or other acts of misconduct has been admitted as bearing on intent, the applicable portions of Instruction 7-13, Uncharged Misconduct, must be given.
NOTE 6. Voluntary termination and casual presence. When some evidence has been presented that raises the issue of voluntary termination of an unauthorized absence prior to the end date alleged in the specification (see US v. Rogers, 59 MJ 584 (ACCA 2003)), the following instruction should be given:

There has been some evidence that the accused was present (on a military (installation) (base) (camp) (post)) (in a military facility) (at/on board—location) prior to the end date alleged in (The) Specification _____ of (The) (Additional) Charge _____. Casual presence for personal reasons (on a military (installation) (base) (camp) (post)) (in a military facility) (at/on board—location), without more, does not terminate an unauthorized absence. To voluntarily terminate an unauthorized absence, the absentee must physically present (himself) (herself) to someone with authority to apprehend (him) (her), that is, a commissioned officer, a noncommissioned officer, or a military policeman (or __________) with the intent to return to military duty. The absentee must properly identify (himself) (herself) and disclose (his) (her) absentee status and submit to the control exercised over (him) (her). If the absentee does not disclose (his) (her) status, the person to whom the absentee presented (himself) (herself) must have been aware already of the absentee’s status, or had a duty to inquire and could have, with reasonable diligence, determined the absentee’s status.

The prosecution bears the burden of proof to establish beyond a reasonable doubt that the accused did not voluntarily terminate (his) (her) absentee status. In order to find the accused guilty of an unauthorized absence for the entire period alleged in the specification, you must be convinced beyond a reasonable doubt that the accused did not voluntarily terminate (his) (her) absentee status prior to the end date alleged in the specification.

(If you find that the accused went from or remained absent without authority as alleged, but voluntarily terminated (his) (her) absentee status prior to the end date alleged, but later absented (himself) (herself) from (his) (her) (unit) (organization) (place of duty at which (he) (she) was required to be), you may find the accused guilty, by exceptions and substitutions, of two or more separate unauthorized absences under one specification, provided that each unauthorized absence is included within the overall period alleged in the specification.)

NOTE 7. Multiple unauthorized absences under single specification. An accused may be found guilty of two or more separate unauthorized absences under one specification, provided that each absence is included within the period alleged in the specification and provided that the accused was not mislead. If an accused is found guilty of two or more unauthorized absences under a single specification, the maximum authorized punishment shall not exceed that authorized if the accused had been found guilty as charged in the specification.
Source: Instruction 3a-9-3 · view original on jagcnet.army.mil

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM. For this offense, the confinement category is dependent on the underlying offense.
Maximum punishment

(1) With intent to avoid hazardous duty or to shirk important service: DD, TF, 5 years, E-1.

(2) All others: DD, TF, 2 years, E-1.

(3) In time of war: Death or other lawful punishment.

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, (a time of war) attempt to (absent himself/herself from (his) (her) (unit) (organization) (place of duty) to wit: __________, without authority and with intent to remain away therefrom permanently) (quit (his) (her) (unit) (organization) (place of duty), to wit: __________, located at __________, with intent to (avoid hazardous duty) (shirk important service) namely __________) (__________).

Elements

(1) That (state the time and place alleged), the accused did a certain act, that is, (state the act(s) alleged or raised by the evidence);

(2) That the act was done with specific intent to commit the offense of desertion;

(3) That the act amounted to more than mere preparation; that is, it was a substantial step and a direct movement toward the commission of the intended offense; (and)

(4) That the act apparently tended to bring about the commission of the offense of desertion, (that is, the act apparently would have resulted in the actual commission of the offense of desertion except for (a circumstance unknown to the accused) (an unexpected intervening circumstance) (__________) which prevented the completion of that offense); [and]

NOTE 2. Aggravating factor alleged. In the event the aggravating factor is alleged, the military judge must advise the court members of the aggravating factor as an element.

((5)) That the accused’s absence was in time of war.

Definitions & other instructions

Proof that the offense of desertion actually occurred or was completed by the accused is not required. However, it must be proved beyond a reasonable doubt that, at the time of the act, the accused intended each element of the offense of desertion. The elements of desertion are: (list the elements of the particular type of desertion allegedly intended, along with necessary definitions and instructions).

NOTE 3. Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), will ordinarily be applicable. When the offense attempted is either desertion with intent to avoid hazardous duty or desertion with intent to shirk important service, the appropriate definitions and instructions on circumstantial evidence in Instruction 3-9-2 should be given. Instruction 7-3, Circumstantial Evidence (Knowledge), will also ordinarily be applicable.
Source: Instruction 3a-9-4 · view original on jagcnet.army.mil