UCMJ Article 85 Desertion vs Article 86 AWOL: Intent Makes a Felony Out of an Absence

On this page: 6 sections

There is no 30-day rule that turns absence without leave into desertion. The Manual for Courts-Martial states that proof of an unauthorized absence, “even of extended duration, does not, without more, prove guilt of desertion” (MCM, Part IV, ¶ 9.c(1)(c)(v)). The difference between Article 86 and Article 85 is intent: desertion requires an intent to remain away permanently, or to avoid hazardous duty or shirk important service. Length of absence is one circumstance from which that intent may be inferred, not a substitute for it. The UCMJ does not label offenses as felonies or misdemeanors; what intent changes is the offense and its maximum, from confinement for 1 month for an absence of 3 days or less to a dishonorable discharge and 5 years for desertion to avoid hazardous duty, or death in time of war.

Article 85: the statutory text

(a) Any member of the armed forces who … (1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently; (2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or (3) without being regularly separated from one of the armed forces 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; is guilty of desertion.
(b) Any commissioned officer of the armed forces who, after tender of his resignation and before notice of its acceptance, quits his post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion.

Source: 10 U.S.C. § 885 (Article 85).

Clause (a)(1) covers both going absent and remaining absent. Clause (a)(3), the Manual explains, “does not state a separate offense”; it is a rule of evidence from which intent to remain away permanently may be inferred (¶ 9.c(1)(d)). Attempted desertion is also punishable, and once the attempt is made, desisting does not cancel it (¶ 9.c(3)).

How intent is proved

The intent to remain away permanently can form at any point during an unauthorized absence and need not last for any particular time (¶ 9.c(1)(c)(i)). The Manual lists circumstances on both sides (¶ 9.c(1)(c)(iii)):

May support an inference of intent to remain away May tend to negate it
A lengthy absence Previous long and excellent service
Disposing of uniforms or other military property Leaving valuable personal property in the unit or on the ship
Buying a ticket to a distant point, or being found far from one's station Being under the influence of alcohol or drugs during the absence
Failing to surrender when it was convenient
Dissatisfaction with the unit or the service, or remarks about deserting
Being under charges, or having escaped from confinement, when the absence began
Financial or other preparations not to return
Enlisting elsewhere without disclosing the earlier service, or entering a foreign armed service

The Manual calls these lists “illustrative only.” It also says that administrative records labeling someone a “deserter” “are not evidence of intent to desert” (¶ 9.c(1)(c)(iv)). A prompt repentance and return, while material in extenuation, is no defense once the offense is complete (¶ 9.c(1)(a)).

For hazardous duty or important service, the accused must have actually known of the duty or service, and whether it qualified is a question of fact (¶ 9.c(2)).

Article 86 in brief

Article 86 covers failing to go to, or going from, an appointed place of duty, and absence from one’s unit, organization, or place of duty, all “without authority” (10 U.S.C. § 886). Specific intent is not an element of basic unauthorized absence, and the offense under 86(3) is complete the moment the absence begins; duration only raises the maximum (MCM, Part IV, ¶ 10.c(3), (8)).

A prisoner whose dismissal or punitive discharge has been executed is not a “member of the armed forces” within Articles 85 or 86 (¶ 9.c(4)).

How the facts sort

For example, a soldier who leaves after a family crisis, calls the unit’s first sergeant twice to say he or she will return, keeps the uniform and car keys in the barracks, and comes back after 45 days has a long absence, but also circumstances that tend to negate an intent to remain away permanently. By contrast, a soldier who, 10 days into an unauthorized absence, sells the issued gear, closes the bank account near the base, and tells friends there is no plan to return has a short absence, but the circumstances support an inference of intent to remain away permanently. No single circumstance decides it; the inference is drawn from the evidence as a whole.

Maximum punishments

Offense Maximum (MCM, Part IV, ¶ 9.d and ¶ 10.d)
Desertion or attempted desertion in time of war Death or such other punishment as a court-martial may direct
Desertion or attempt with intent to avoid hazardous duty or shirk important service Dishonorable discharge, forfeiture of all pay and allowances, 5 years
Other desertion or attempt, terminated by apprehension Dishonorable discharge, forfeiture of all pay and allowances, 3 years
Other desertion or attempt, terminated otherwise Dishonorable discharge, forfeiture of all pay and allowances, 2 years
Absence of more than 30 days, terminated by apprehension Dishonorable discharge, forfeiture of all pay and allowances, 18 months
Absence of more than 30 days Dishonorable discharge, forfeiture of all pay and allowances, 1 year
Absence of more than 3 but not more than 30 days Confinement for 6 months and forfeiture of two-thirds pay per month for 6 months
Absence of not more than 3 days, or failing to go to or going from the place of duty Confinement for 1 month and forfeiture of two-thirds pay per month for 1 month

The Manual’s maximums for Article 86 also cover absence from guard or watch and absence with intent to avoid maneuvers or field exercises (¶ 10.d). In a capital case, the members decide whether a death-eligible conviction results in death or life without eligibility for parole, or return the matter to the military judge (10 U.S.C. § 853(c)(1)). Otherwise, where every finding of guilty is for an offense committed after December 27, 2023, the military judge sets the sentence in a general or special court-martial (§ 853(b)(1)).

Sources

General legal information on Articles 85 and 86; it does not evaluate any absence, return, or personnel record. This page reflects the UCMJ as amended through Public Law 119-60 (December 18, 2025) and the Manual for Courts-Martial (2024 edition) as amended by Executive Order 14130.

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