Desertion and AWOL are among the oldest and most commonly prosecuted military offenses, striking at the core obligation of every servicemember to remain present for duty. While both involve unauthorized absence from military control, they differ in a critical element: intent.
Distinguishing Desertion from AWOL
Desertion under Article 85 requires proof that the accused absented themselves from their unit, organization, or place of duty with the intent to remain away permanently, or absented themselves to avoid hazardous duty or shirk important service. AWOL under Article 86 covers any unauthorized absence regardless of the accused’s ultimate intention.
The practical distinction is significant. A servicemember who fails to return from leave on time is AWOL. A servicemember who packs all personal belongings, closes bank accounts, and leaves with no intention of returning commits desertion. The intent element makes desertion a more serious offense with more severe potential punishments.
Investigating and Establishing Evidence
Investigators establish the distinction between desertion and AWOL through circumstantial evidence of intent. Factors courts consider include the length of the absence, whether the accused took personal property, whether the accused made statements indicating an intent not to return, whether the accused assumed a new identity or took employment elsewhere, and whether the accused made any effort to communicate with the military or return to duty.
A prolonged unauthorized absence may give rise to a presumption of intent to desert. Under the MCM, an absence of 30 days or more creates a rebuttable presumption that the accused intended to remain away permanently.
Maximum Punishments
Desertion in time of war is one of the most severely punished offenses under the UCMJ, carrying a potential death sentence. Desertion in peacetime with intent to remain away permanently carries a maximum punishment of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for up to three years. Desertion with intent to avoid hazardous duty or shirk important service carries a maximum of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for up to five years.
AWOL carries lesser maximum punishments that vary by the length of the absence. An AWOL of 30 days or more carries a maximum of a dishonorable discharge, forfeiture of all pay and allowances, and one year of confinement.
Proving Intent to Remain Away Permanently
Intent to remain away permanently is the critical element distinguishing desertion from AWOL. The prosecution typically proves intent through circumstantial evidence: the servicemember’s actions before and during the absence, statements made to others, disposal of military property, failure to contact the unit, and the duration of the absence.
The defense may rebut the inference of intent by showing that the accused intended to return, was prevented from returning by circumstances beyond their control, or that the absence was the result of a misunderstanding about orders or leave status.
Available Defenses
Defenses to AWOL and desertion charges include lack of knowledge (the accused did not know they were required to be at a specific place), impossibility (the accused was physically unable to return due to hospitalization, natural disaster, or other circumstances beyond their control), and lack of intent (for desertion charges).
Constructive Knowledge and Missing Movement
Article 87 of the UCMJ addresses the separate offense of missing a movement of a ship, aircraft, or unit. Missing movement through neglect differs from missing movement through design (intentionally). The concept of constructive knowledge applies: a servicemember who should have known about a scheduled movement may be convicted of missing movement through neglect even without actual knowledge of the departure time.
Voluntary Return
A servicemember who voluntarily returns from an unauthorized absence may receive consideration in charging and sentencing, but the return does not automatically eliminate liability for the period of absence. Voluntary return may be relevant to the intent analysis in desertion cases, as it suggests the accused may not have intended to remain away permanently.
Modern Communication Technologies
Modern communication technologies have affected both the prosecution and defense of AWOL cases. GPS data, cell phone records, social media activity, and email communications can provide evidence of the accused’s location and intent during the unauthorized absence. These technologies can either support the prosecution’s case (by showing the accused was far from duty and making no effort to return) or the defense’s case (by showing the accused was attempting to arrange return or was unaware of the duty requirement).
Important Notice
This guide is provided for general informational and educational purposes only. It is not legal advice, and it should not be relied upon as a substitute for consultation with a qualified attorney. Military law is complex, and the application of these rules depends heavily on the specific facts and circumstances of each case. Statutes, regulations, and case law are subject to change. Anyone facing court-martial proceedings or military legal issues should seek the guidance of a licensed attorney experienced in military justice. The information presented here reflects publicly available legal authorities and does not represent the official position of any government agency or military branch.
