A desertion defense almost always comes down to a single word: intent. Desertion is one of the most serious absence offenses, but it is separated from a far lesser one, absence without leave, by the accused’s state of mind. Building the defense means attacking the specific intent the government must prove, because without it, desertion is not made out.
Desertion versus AWOL: the intent line
The distinction is the foundation. Article 85 (desertion) is a specific-intent offense: the government must prove not only an unauthorized absence but a particular mental state, that the accused intended to remain away permanently, or left to avoid hazardous duty, or to shirk important service. By contrast, Article 86 (absence without leave) is a general-intent offense, requiring only the unauthorized absence, with no permanent-intent requirement.
That difference is everything, because it means an absence, even a long one, is not desertion unless the required intent is also proven. The same facts that establish AWOL fall short of desertion absent that mental state.
Attacking the specific intent
Since intent is the dividing line, it is the center of the defense. The work is to show the government cannot prove the required mental state:
- Intent to return. Evidence that the member meant to come back, contact with the unit, preparations to return, statements, undercuts intent to remain away permanently.
- Circumstances beyond control. If the member could not return due to factors outside their control, the inference of intent weakens.
- Mental health or crisis. A medical emergency, a family crisis, or a mental-health condition can negate or undermine the claim of criminal intent.
Where these succeed, the natural result is not acquittal of all wrongdoing but a reduction to AWOL under Article 86, a markedly less serious offense.
The strategic goal
So the defense’s realistic aim is often to defeat the intent element and move the case from desertion to AWOL. Because desertion is a specific-intent crime, if the government cannot prove the accused’s absence was accompanied by the intent to remain away or avoid service, the desertion charge fails.
Suppose a member left for three weeks during a family crisis but always meant to return: the attorney uses that intent to defeat desertion, leaving at most the lesser offense of unauthorized absence.
The throughline is that desertion is defended on intent. The offense requires a specific intent to remain away permanently or to avoid duty that ordinary AWOL does not, so a defense built on negating that intent can defeat the desertion charge and, at most, leave the lesser AWOL offense.
Frequently Asked Questions
What separates desertion from AWOL?
Intent. Desertion under Article 85 requires specific intent to remain away permanently, avoid hazardous duty, or shirk important service, while AWOL under Article 86 requires only an unauthorized absence.
How is a desertion charge defended?
By attacking the specific-intent element, using evidence of an intent to return, circumstances beyond the member’s control, or mental-health factors to show the government cannot prove the required intent.
What happens if the intent element fails?
The desertion charge fails, and the case is typically reduced to the lesser offense of absence without leave under Article 86.
This article is general information about desertion charges. It is not legal advice and does not create an attorney-client relationship. Application is fact-specific and the law can change. Anyone facing such charges should consult qualified defense counsel.
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