San Diego Military Desertion Attorney

As a member of the military, you have an obligation to follow orders. An unauthorized absence from your military duty could have serious consequences.

You may be court-martialed for desertion if the military believes that you intended to abandon your duties and stay away for good. Desertion is a serious military crime.

If you’ve been accused of desertion it’s important to call San Diego Military Defense Attorneys as soon as you can.

Understanding Desertion

Desertion is defined in Article 85 of the UCMJ. There are three different ways that you can be considered charged with the crime of desertion under Article 85.

You can be court-martialed for desertion if, as a member of the military, you:

  1. Go or remain absent from your unit, organization, or place of duty without authorization and with the intent to remain away permanently;
  2. Quit your unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important responsibility; or
  3. Enlist or accept a position with another branch of the military – American or foreign – without disclosing that you haven’t been regularly separated from your current post.

So, you can be charged with desertion if you leave your military duties behind with an intent to remain away forever, quit your job and refuse to perform hazardous or important duties, or enlist in another branch of the armed forces without having been formally separated from your current position.

Any attempt to permanently desert your military duties is also a crime.

Desertion vs. AWOL

Desertion is not the only military crimes involving the abandonment of military duties. You can also face criminal military charges if you are Absent Without Leave (AWOL). What’s the difference between being AWOL and deserting your duties?

The main difference involves your intent. Desertion requires an intent to abandon your military duties “with the intent to remain away therefrom permanently.”

Absence without leave requires no such intent. Instead, you can be considered AWOL if you simply fail to show up on time or follow an order. You don’t have to intend to abandon your job forever.

How Can the Military Prove a Permanent Intent to Remain Away?

Desertion charges often boil down to whether or not a servicemember abandoned his or her responsibilities with an intent to remain away permanently.

Evidence that could be used to support the argument that a servicemember intended to remain away permanently could include:

  • Buring or destruction of military clothing
  • Destruction of military ID
  • Suddenly moving to another country, or
  • Taking active steps to change or conceal one’s identity.

There’s no hard and fast way to prove that someone had the intent to permanently desert their military duties. The answer will require a careful assessment of facts and circumstances that are relevant to a specific situation.

Causes of Military Desertion

There are a number of reasons that a member of the military may leave, quit, or abandon his or her military duties. Common reasons for desertion include:

  • Leaving to tend to personal family matters without authority
  • Unforeseen personal problems
  • Drug and/or alcohol substance abuse problems
  • Mental illness
  • Unexpected side effects from medication
  • Physical injury
  • Threats of violence made by other servicemembers
  • Fear of imminent harm
  • Fear of engaging in a dangerous activity while on duty, or
  • Moral or religious objections to military duties.

In the eyes of the military, there is no excuse for deserting your post. However, offering an explanation and/or justification for your crime can help to minimize the consequences you may face. Your officer may even decline to bring your matter before a court-martial.

What Happens If I’m Accused of Desertion?

Your commanding officer will determine what happens and how the process unfolds if you’re accused of desertion. There are a few different possibilities of what could happen.

1. Article 15

Your commanding officer can opt to impose Article 15, which would involve nonjudicial punishment. This option may be used if you returned after you were missing for a short period of time or can provide a legitimate and reasonable justification for your absence.

Consequences of Article 15 proceedings can include fines, reduction in rank, restrictions, and/or correctional custody.

2. Administrative Discharge

Your commanding officer can opt to subject you to an administrative discharge.

This could be imposed in addition to any penalties applied under Article 15. An administrative discharge will typically result in a general discharge or other-than-honorable discharge.

You may be subject to administrative discharge if you were missing for an extended period of time, forced to come back against your will, or if you could not provide a legitimate justification for your absence.

3. Courts-Martial

Your commanding officers can also report your misconduct and refer your case to a court-martial. The courts-martial is basically the judicial branch of the military. It has jurisdiction over all crimes committed by members of the armed forces.

Penalties for Military Desertion

A court-martial has the authority to consider your crime and, if convicted, determine an appropriate punishment. The penalty for desertion depends on which type of court martial hears your case.

Summary Courts-Martial: The maximum penalties for a desertion conviction by Summary Courts-Martial includes:

  • Confinement for 30 days
  • Forfeiture of two-thirds pay for one month, and/or
  • Reduction to lowest pay grade.

Special Courts-Martial: The maximum penalties for a desertion conviction by Special Courts-Martial includes:

  • Confinement for 12 months
  • Forfeiture of two-thirds pay for 12 months
  • Reduction to lowest pay grade; and/or
  • Bad conduct discharge.

General Courts-Martial: The maximum penalties for a desertion conviction by General Courts-Martial includes:

  • Confinement for five years
  • Forfeiture of all pay; and/or
  • Dishonorable discharge.

Penalties can be enhanced if you are accused of desertion during a time of war. The court-martial will have the authority to apply the death penalty if the situation warrants such a harsh punishment.

Fighting Desertion Charges

Desertion is one of the most serious military crimes in the UCMJ. If you’re facing military charges for desertion it’s important to speak with an experienced military criminal law attorney immediately.

The earlier you get your attorney involved in the process, the better. An attorney can step in and mitigate the situation before you are ordered to face a court-martial.

Contact our experienced San Diego military desertion attorneys today to schedule a free consultation. We’ll review your case and explain how we can help. Call today to learn more.