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Failure to report for duty – Desertion

On Behalf of | Aug 9, 2022 | Military Law |

By joining the military, you agree to strict rules over conduct, duties and when you may take leave. Service members who fail to show up for duty can face severe punishment depending upon the circumstances.

Previously, we looked at AWOL, or absent without official leave, charges. In this blog, we’ll take a deeper look at desertion, similar to AWOL but generally involves a service member who intends to permanently leave their unit or place of duty.

Desertion defined

Military personnel can face desertion under Article 85 of the Uniform Code of Military Justice (UCMJ). The government alleges that the service member intentionally left their post. Those AWOL for 30 days typically face desertion charges. The Manual for Courts-Martial defines three types of desertion:

1. Intent to remain away permanently

The accused was absent from their place of duty, unit or organization without authorization. During their time away, the accused intended to be absent and remained so until a specific date or when they were apprehended.

2. Intent to avoid important service or hazardous duty

The accused intended to avoid service or a certain duty by quitting their unit, organization or post and the duty or service they were to perform was hazardous or crucial. The accused also knew that the service or responsibility was required, and they remained absent until a specific date.

3. Desertion before notice of resignation is accepted

In these cases, the accused are commissioned officers who resign. However, before receiving approval, they quit their duties and intended to stay away permanently. They remained absent until a specific date, or they were apprehended.

Service members can also be charged with attempted desertion, providing the attempt went beyond simple preparation.

Penalties and defenses

Desertion can bring heavy maximum penalties, including a dishonorable discharge, confinement of up to five years and forfeiture of all pay. Desertion during wartime can result in the death penalty at court-martial proceedings. The government seeks to prove that the service member intended to permanently leave their duties and aren’t usually looking for the reasons behind the absence.

That’s why working with an aggressive and experienced military defense attorney is advisable if you face desertion charges. Legitimate defenses include leaving to receive a vital medical procedure, or you were in a car accident, putting you in the hospital and requiring ongoing treatment. Other factors may be considered at trial, including whether you have PTSD or experience other forms of duress. Some cases involve mistakes of fact by the government.

Regardless of the circumstances, if you are accused of desertion or any unauthorized leave, it’s crucial for your career and future to consult a knowledgeable lawyer. In our next blog, we’ll look at another charge over failure to report for duty prosecuted under the UCMJ – missing movement.