2008 edition - Fort Sam Houston - U.S. Army

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.
( i i ) T h e a c c u s e d m u s t h a v e i n t e n d e d t o
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
m a y b e e s t a b l i s h e d b y c i r c u m s t a n t i a l e v i d e n c e .
Among the circumstances from which an inference
may be drawn that an accused intended to remain
absent permanently or; 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
i n t e n t i o n t o d e s e r t ; t h a t t h e a c c u s e d w a s u n d e r
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 un-
9.c.(2)(c)
authorized 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 85a(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
a c c e p t s a n a p p o i n t m e n t i n t h e s a m e o r a n o t h e r
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 ) H a z a r d o u s d u t y o r i m p o r t a n t s e r v i c e .
“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
o r d i n a r i l y “ h a z a r d o u s d u t y o r i m p o r t a n t s e r v i c e . ”
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 courtmartial
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 hazard-
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