UCMJ Article 99 Misbehavior Before Enemy vs Article 85 Desertion: Running From Battle vs Running From Service
On this page: 5 sections
Article 99 requires the enemy to be present or near in a tactical sense; Article 85 does not. Running away under Article 99 is “an unauthorized departure to avoid actual or impending combat,” and it need not be the result of fear (MCM, Part IV, ¶ 27.c(1)(a)). Desertion under Article 85 is leaving or staying away with intent to remain away permanently, or quitting one’s unit to avoid hazardous duty or shirk important service, whether or not any enemy is near.
The punishments also differ in how war matters. Every form of Article 99 carries a possible death sentence. Desertion does so only “in time of war” (10 U.S.C. § 885(c)).
Article 99: nine forms of misbehavior
Article 99 applies to any member of the armed forces who, “before or in the presence of the enemy”:
(1) runs away;
(2) shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty to defend;
(3) through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property;
(4) casts away his arms or ammunition;
(5) is guilty of cowardly conduct;
(6) quits his place of duty to plunder or pillage;
(7) causes false alarms in any command, unit, or place under control of the armed forces;
(8) willfully fails to do his utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other thing, which it is his duty so to encounter, engage, capture, or destroy; or
(9) does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the armed forces belonging to the United States or their allies when engaged in battle;
Source: 10 U.S.C. § 899 (Article 99). Each is punishable “by death or such other punishment as a court-martial may direct.”
“Before or in the presence of the enemy” is “a question of tactical relation, not distance.” A member of an antiaircraft crew or of a unit about to move into combat may be before the enemy though miles from enemy lines; a unit away from any current or imminent tactical operation is not (¶ 27.c(1)(c)). The “enemy” includes organized enemy forces in time of war and any hostile body U.S. forces may be opposing (¶ 27.c(1)(b)).
Article 85 in brief
Desertion covers absence “with intent to remain away therefrom permanently,” quitting a unit or place of duty “with intent to avoid hazardous duty or to shirk important service,” and enlisting elsewhere without disclosing that one has not been separated (10 U.S.C. § 885(a)). Hazardous duty or important service can include duty in a combat or other dangerous area and embarkation for foreign or sea duty, and the accused must have actually known of it (MCM, Part IV, ¶ 9.c(2)). No fixed period of absence proves desertion; the intent is inferred from all the circumstances (¶ 9.c(1)(c)).
How the facts sort
| Misbehavior before the enemy (Article 99) | Desertion (Article 85) | |
|---|---|---|
| Enemy proximity | Required: before or in the presence of the enemy, in a tactical sense | Not required |
| Core conduct | Nine forms, from running away to failing to aid forces in battle | Absence with intent to remain away permanently, or quitting to avoid hazardous duty or shirk important service |
| Fear | Not required for running away; cowardly conduct must result from fear | Not an element |
| Death penalty | Available for every form | Only in time of war |
For example, a soldier in a defensive position who leaves the fighting position and withdraws to the rear as an enemy assault begins, to avoid the combat, raises running away under Article 99. A sailor who, weeks before the ship sails, stops reporting and moves across the country with no plan to come back is in different territory: no enemy is present in the tactical sense, so Article 99 does not fit, and the facts point to desertion with intent to remain away permanently. Whether a unit was “before the enemy” and what the accused intended are decided on the evidence of where the unit stood and what the accused did.
Maximum punishments
| Offense | Maximum (MCM, Part IV, ¶ 27.d and ¶ 9.d; 10 U.S.C. §§ 885(c), 899) |
|---|---|
| Any Article 99 offense | Death or such other punishment as a court-martial may direct |
| 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 |
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)). In a case not tried as capital, where every finding of guilty is for an offense committed after December 27, 2023, the military judge determines the sentence in a general or special court-martial (§ 853(b)(1)).
Sources
- 10 U.S.C. § 899, misbehavior before the enemy (Article 99)
- 10 U.S.C. § 885, desertion (Article 85)
- 10 U.S.C. § 853, findings and sentencing (Article 53)
- Manual for Courts-Martial, United States (2024 edition), Part IV, ¶ 9 and ¶ 27.
Articles 99 and 85 are summarized for general information; nothing here evaluates conduct in any operation or absence. 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.