Military Desertion: Article 85, Penalties, and Defenses

Military desertion penalties under Article 85 of the Uniform Code of Military Justice reach up to five years of confinement, total forfeiture of pay and allowances, and a dishonorable discharge during peacetime. In wartime, the maximum punishment is death. The dishonorable discharge that follows a conviction is often the more lasting harm: it ends eligibility for nearly all Department of Veterans Affairs benefits and permanently bars the person from possessing firearms under federal law.

Desertion Is Not the Same as Being AWOL

The difference between unauthorized absence under Article 86 and desertion under Article 85 comes down to intent. A service member who oversleeps, misses formation, or stays out a few days past leave is AWOL. Desertion requires the government to prove something harder: that you intended to stay away permanently, or that you left specifically to avoid a dangerous assignment.

The 30-day mark is where the administrative posture shifts. Once a service member has been AWOL for 30 consecutive days, the military reclassifies them as a deserter, issues a federal arrest warrant on a DD Form 553, and enters the name into the FBI’s National Crime Information Center wanted-persons database.¹ From that point, a routine traffic stop can lead to arrest, and pay and benefits stop. Reclassification is not the same as a desertion conviction, but it triggers the full apprehension machinery. If evidence shows the person left with intent to stay gone, commanders can pursue desertion charges before the 30 days run.

Three Ways Article 85 Is Charged

Article 85, codified at 10 U.S.C. § 885, defines three separate ways a service member can commit desertion. Each has its own elements and its own maximum penalty.

Leaving With Intent to Stay Away Permanently

The most common charge involves leaving your unit, organization, or place of duty without authorization and with the intent to remain away permanently.² The key word is “permanently.” A long absence alone is not enough. Because nobody announces an intent to desert, courts rely on circumstantial evidence: disposing of uniforms and equipment, assuming a new identity, moving abroad, or taking civilian work under an alias. The longer the absence, the stronger the inference.

Leaving to Avoid Hazardous Duty or Shirk Important Service

The second form covers a service member who leaves to dodge a dangerous assignment or an important obligation. The prosecution does not need to prove permanent intent here. The focus is on what the person was trying to avoid and the timing.² Hazardous duty covers combat deployments and operations in designated hostile-fire zones. Important service includes things like boarding a ship for a scheduled cruise or deploying to a theater. If your unit ships out next week and you vanish the day before, the timing itself supports the charge, even if the absence is short. This form carries the heaviest peacetime penalty.

Enlisting in Another Force Without Separating

A lesser-known form applies to anyone who enlists or accepts a commission in another U.S. armed service, or enters a foreign military, without being properly separated first and without disclosing the prior obligation.² Neither permanent intent nor avoidance of hazardous duty needs to be proved. The act of joining another force while still obligated is itself desertion.

Peacetime Penalties at Court-Martial

Every desertion conviction is punishable by a dishonorable discharge and total forfeiture of pay and allowances. The confinement ceiling depends on the type of desertion and how the absence ended.

Desertion to avoid hazardous duty or shirk important service: dishonorable discharge, forfeiture of all pay and allowances, and up to five years of confinement, regardless of whether the service member was apprehended or surrendered.³
Other desertion ended by apprehension: dishonorable discharge, forfeiture of all pay and allowances, and up to three years of confinement.³
Other desertion terminated voluntarily: dishonorable discharge, forfeiture of all pay and allowances, and up to two years of confinement.³

Surrendering voluntarily shaves a year off the confinement maximum in non-hazardous-duty cases. That gap is one reason defense counsel push clients to return on their own rather than wait to be picked up. Actual sentences vary widely within these ceilings, and a judge can impose far less than the maximum.

Wartime Desertion Is a Capital Offense

When the desertion occurs in time of war, 10 U.S.C. § 885(c) raises the maximum to death.² A court-martial can also impose life imprisonment as an alternative. A death sentence requires a unanimous guilty finding on a capital-eligible charge and a unanimous vote by the members that the sentence should include death.⁴ Executions for desertion are effectively unheard of in the modern era; the practical significance of the capital exposure today is that wartime desertion has no statute of limitations.

Lifetime Consequences of a Dishonorable Discharge

For many people convicted of desertion, the sentence they serve is not the worst part. The dishonorable discharge is what follows you.

A dishonorable discharge cuts off virtually all VA benefits: disability compensation, pension, and dependency and indemnity compensation for surviving family members. Federal regulations single out anyone discharged as a deserter, and VA benefits are not payable regardless of other circumstances. The one narrow exception is a finding that the service member was insane at the time of the offense.⁵

Federal firearms law adds a permanent bar. Under 18 U.S.C. § 922(g)(6), anyone discharged under dishonorable conditions cannot possess, ship, or receive firearms or ammunition, and violating that ban is a separate federal felony.⁶ A dishonorable discharge functions like a felony conviction in most civilian contexts and can affect professional licensing, employment background checks, and federal student aid eligibility.

How Long the Government Has to File Charges

For peacetime desertion, the government generally has five years to bring charges. The clock is measured by when charges are received by an officer exercising summary court-martial jurisdiction.⁷ That clock does not run while you are AWOL, fleeing from justice, outside U.S. jurisdiction, in civilian custody, or held by the enemy. In practical terms, someone who deserts and stays hidden freezes the five-year period for the entire absence.

Wartime desertion has no statute of limitations because it is a capital offense.⁷ A wartime deserter can be tried decades later.

Defenses to a Desertion Charge

Desertion charges are not automatic convictions. Several recognized defenses can defeat or reduce the charge.

Lack of mental responsibility. If a severe mental disease or defect kept you from appreciating the wrongfulness of your conduct, this is a complete defense, but you carry the burden of proving it by clear and convincing evidence.
Duress. Leaving because you reasonably believed you or another innocent person would be immediately killed or seriously injured otherwise can be a defense. A generalized fear of future harm does not qualify; the threat must be immediate.
Inability. If you were physically unable to return through no fault of your own, such as hospitalization or civilian incarceration, inability applies.
Mistake of fact. A genuine and reasonable belief in circumstances that would have made your absence lawful, such as believing leave had been granted, can defeat the intent element.

In many cases the strongest move is attacking intent directly. Because the government has to prove you meant to stay away permanently, or meant to avoid hazardous duty, evidence that you kept your military ID, stayed in touch with anyone in your unit, or took steps toward a return can be more effective than any affirmative defense.

Penalties for Harboring or Helping a Deserter

Liability does not stop with the person who left. Under 18 U.S.C. § 1381, anyone who knowingly harbors, conceals, protects, or assists a deserter, or refuses to give up a deserter on demand by a military officer, commits a federal crime.⁸ This reaches civilians, including family and friends who let a deserter stay with them, give them money, or help them move.

The penalty is imprisonment of up to three years, a fine, or both. Because the offense carries up to three years, it qualifies as a felony, and the general federal felony fine cap, up to $250,000 for an individual, applies.⁸⁹

For military personnel who help a fellow service member evade justice, Article 78 of the UCMJ covers accessories after the fact. Anyone subject to the UCMJ who knows an offense has been committed and assists the offender to hinder apprehension, trial, or punishment faces a court-martial, with possible confinement, reduction in rank, and a punitive discharge.¹⁰

1
GovInfo. 32 CFR Part 630 – Absentee Deserter Apprehension Program
2
Office of the Law Revision Counsel. 10 USC 885 – Art. 85. Desertion
3
University of Houston Law Center. Manual for Courts-Martial – Article 85 Desertion
4
Office of the Law Revision Counsel. 10 USC 852 – Art. 52. Votes Required for Conviction, Sentencing, and Other Matters
5
eCFR. 38 CFR 3.12 – Benefit Eligibility Based on Character of Discharge
6
Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts
7
Office of the Law Revision Counsel. 10 USC 843 – Art. 43. Statute of Limitations
8
Office of the Law Revision Counsel. 18 USC 1381 – Enticing Desertion and Harboring Deserters
9
Office of the Law Revision Counsel. 18 USC 3571 – Sentence of Fine
10
Office of the Law Revision Counsel. 10 USC 878 – Art. 78. Accessory After the Fact