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

9.c.(2)(c)
ous duty or important service. Actual knowledge
may be proved by circumstantial evidence.
( 3 ) A t t e m p t i n g t o d e s e r t . O n c e t h e a t t e m p t i s
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 subparagraph
9c(1)(c).
(4) Prisoner with executed punitive discharge. A
prisoner whose dismissal or dishonorable or badconduct
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 95 or an
offense under Article 134.
d . L e s s e r i n c l u d e d o f f e n s e . A r t i c l e 8 6 — a b s e n c e
without leave
e. 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 ) T e r m i n a t e d o t h e r w i s e . D i s h o n o r a b l e d i s -
charge, 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.
f. Sample specifications.
(1) Desertion with intent to remain away permanently.
I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) ,
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
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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.
I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) ,
did, on or about 20 , (a time of
war) with intent to (avoid hazardous duty) (shirk
important service), namely: , quit his/her
( u n i t ) ( o r g a n i z a t i o n ) ( p l a c e o f d u t y ) , t o
wit: , located at ( ), and did
r e m a i n s o a b s e n t i n d e s e r t i o n u n t i l o n o r
about 20 .
(3) Desertion prior to acceptance of resignation.
I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a )
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.
I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) ,
d i d ( a t / o n b o a r d - l o c a t i o n ) , o n o r
about 20 , (a time of
war) attempt to (absent himself/herself from his/her
( u n i t ) ( o r g a n i z a t i o n ) ( p l a c e o f d u t y ) t o
wit: , without authority and with intent
to remain away therefrom permanently) (quit his/her
( u n i t ) ( o r g a n i z a t i o n ) ( p l a c e o f d u t y ) , t o
wit: , located at , with
intent to (avoid hazardous duty) (shirk important
service) namely ) ( ).
10. Article 86—Absence without leave
a. Text of statute. Any member of the armed
forces who, without authority—
(1) fails to go to his appointed place of duty at
the time prescribed;
(2) goes from that place; or
(3) absents himself or remains absent from his
unit, organization, or place of duty at which he is
required to be at the time prescribed; shall be
punished as a court-martial may direct.
b. Elements.
(1) Failure to go to appointed place of duty.
(a) That a certain authority appointed a certain
time and place of duty for the accused;