How Does the UCMJ Address Desertion and Absence Without Leave (AWOL)?
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Absence without leave (Article 86) punishes being absent without authority from a place of duty, regardless of intent. Desertion (Article 85) adds a specific intent or a specific act: absence with intent to remain away permanently, quitting one’s unit with intent to avoid hazardous duty or shirk important service, or enlisting or accepting an appointment without disclosing that one was never regularly separated. That difference drives the punishment. An absence over 30 days carries up to one year of confinement, or 18 months if ended by apprehension; desertion carries up to two, three, or five years, and in time of war may be punished by death (Article 85(c)). Missing movement (Article 87) is a separate offense.
The three statutes
Article 86, absence without leave. Any member who, without authority, “fails to go to his appointed place of duty at the time prescribed”, “goes from that place”, or “absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed” may be punished as a court-martial directs.
Article 85, desertion. A member is guilty of desertion who:
- “without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently”;
- “quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service”; or
- without being regularly separated, “enlists or accepts an appointment in the same or another one of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States” (Article 85(a)).
An officer who, after tendering a resignation and before notice of acceptance, quits his post without leave and with intent to remain away permanently is also guilty of desertion (Article 85(b)). The third form does not require leaving one’s unit; it turns on the undisclosed enlistment or appointment.
Article 87, missing movement. A person who, “through neglect or design, misses the movement of a ship, aircraft, or unit with which the person is required in the course of duty to move” may be punished as a court-martial directs (Article 87(a)).
Maximum punishments
| Offense | Maximum (Manual, Part IV) |
|---|---|
| Failing to go to, or going from, appointed place of duty | 1 month; two-thirds pay for 1 month (¶10.d(1)) |
| Absence of not more than 3 days | 1 month; two-thirds pay for 1 month |
| Absence of more than 3 but not more than 30 days | 6 months; two-thirds pay for 6 months |
| Absence of more than 30 days | Dishonorable discharge, total forfeitures, 1 year |
| Absence of more than 30 days, ended by apprehension | Dishonorable discharge, total forfeitures, 18 months (¶10.d(2)) |
| Desertion with intent to avoid hazardous duty or shirk important service | Dishonorable discharge, total forfeitures, 5 years |
| Other desertion, ended by apprehension | Dishonorable discharge, total forfeitures, 3 years |
| Other desertion, ended otherwise | Dishonorable discharge, total forfeitures, 2 years |
| Desertion in time of war | Death or such other punishment as a court-martial may direct (¶9.d) |
| Missing movement through design | Dishonorable discharge, total forfeitures, 2 years |
| Missing movement through neglect | Bad-conduct discharge, total forfeitures, 1 year (¶11.d) |
In non-capital cases in which all findings of guilty are for offenses committed after December 27, 2023, the military judge sentences within these maxima using the Manual’s sentencing parameters; see what punishments a court-martial can impose. The last U.S. Army execution by firing squad, of Private Eddie D. Slovik on January 31, 1945, was for desertion during World War II (Military Times, October 7, 2026).
Proving intent to remain away permanently
When the intent forms. The intent “may be formed any time during the unauthorized absence” and need not exist throughout it. It is no defense that the accused also intended to report for duty elsewhere or to enlist in another service (¶9.c(1)(c)(i)-(ii)).
How it is proved. “The intent to remain away permanently may be proved by circumstantial evidence.” The Manual lists circumstances “from which an inference may be drawn”, including:
- that the period of absence was lengthy;
- disposing of uniforms or other military property;
- buying a ticket for a distant point, or being arrested, apprehended, or surrendering a considerable distance from one’s station;
- being able to surrender conveniently to military control but not doing so;
- dissatisfaction with the unit, ship, or military service;
- remarks indicating an intention to desert;
- being under charges or having escaped from confinement when the absence began;
- preparations indicating an intent not to return, such as financial arrangements; and
- enlisting or accepting an appointment without disclosing one’s status, or entering foreign armed service without authorization (¶9.c(1)(c)(iii)).
Circumstances that cut the other way. The Manual lists “previous long and excellent service”, leaving valuable personal property in the unit or on the ship, and being under the influence of alcohol or drugs during the absence as circumstances that “may tend to negate an inference” of intent to remain away permanently.
Length is evidence, not a presumption. A lengthy absence is one listed circumstance from which the factfinder may draw an inference; the Manual does not set a number of days that establishes desertion, and the government must prove the intent beyond a reasonable doubt. If it does not, absence without leave remains as a lesser offense.
Return does not undo it. Desertion with intent to remain away permanently “is complete when the person absents himself or herself without authority … with the intent to remain away therefrom permanently. A prompt repentance and return, while material in extenuation, is no defense” (¶9.c(1)(a)).
Two 40-day absences (hypothetical)
Two members are each absent for 40 days. The first leaves belongings in the barracks, tells a friend about needing time to think, and surrenders at a nearby installation. The second sells a car, closes a bank account, takes a job under another name, and is apprehended in another state. Both have committed absence without leave of more than 30 days. The second member’s conduct matches several circumstances the Manual lists as supporting an inference of intent to remain away permanently, and the apprehension raises the ceiling for either offense; the first member’s surrender and the property left behind are circumstances the Manual says may tend to negate that inference.
Missing movement
- Movement. A move, transfer, or shift of a ship, aircraft, or unit “involving a substantial distance and period of time”; a short practice march or moving a ship between berths in the same harbor is not one (¶11.c(1)(a)).
- Design or neglect. “Design” requires specific intent to miss the movement. “Neglect” means failing to take appropriate measures to be present, or acting without attention to the probable consequences, such as going so far away that returning in time is unlikely (¶11.c(1)(c)-(d)).
- Actual knowledge. The accused “must have actually known of the prospective movement that was missed”, but “Knowledge of the exact hour or even of the exact date of the scheduled movement is not required” (¶11.c(1)(e)).
Missing movement and absence without leave have different elements, so the same episode can support both charges: a member can miss a movement without a long absence, and can be absent without missing any movement.
Time limits
Absence without leave and desertion “are not continuing offenses and are committed, respectively, on the day the person goes absent” or deserts, and periods of unauthorized absence are excluded when the limitation period is computed (Discussion to R.C.M. 907(b)(2)(B)). Article 43(a) lets absence without leave or missing movement in time of war, and “any other offense punishable by death,” which includes desertion in time of war, be tried at any time, as explained in how the statute of limitations operates under the UCMJ. Commanders may also handle short absences through nonjudicial punishment under Article 15.
Sources
- 10 U.S.C. § 885, Article 85, Desertion (Cornell LII)
- 10 U.S.C. § 886, Article 86, Absence without leave (Cornell LII)
- 10 U.S.C. § 887, Article 87, Missing movement; jumping from vessel (Cornell LII)
- Army sets date, location for execution of Nidal Malik Hasan, October 7, 2026 (Military Times)
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶¶ 9, 10, 11; R.C.M. 907(b)(2)(B) and Discussion
This article is general information about military law, not legal advice for any individual case.