AWOL v. Desertion - The Key is Evidence
Posted By The Federal Practice Group Worldwide Service || 2-Dec-2011
The key difference between AWOL (Art 86, UCMJ) and Desertion (Art 85, UCMJ) rests on the evidence establishing the element of intent. If the prosecutor can prove that the accused intended to permanently stay away, the maximum punishment of the accused increases dramatically. The maximum punishment for desertion terminated by apprehension is dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years. On the other hand, the maximum punishment for AWOL of over 30 days terminated by apprehension is dishonorable discharge, forfeiture of all pay and allowances, and confinement for 18 months. As such, it is critical to select experienced military defense counsels who will uncover all the facts negating the intent and limiting the maximum punishment of the accused.
Recently, in United States v. Oliver, the United States Court of Appeals for the Armed Forces held that the evidence was legally sufficient to support the finding of guilty of desertion. In this case, the accused was away for 3 years, had ready access to military authorities but did not report himself in, and did not inform his chain of command of his family problems. However, the court also recognized that many of the facts showing intent 'cut both ways', and could negate the intent. The court remarked that the prosecution 'did little to develop the factual context of its evidence', but it did enough to legally prove desertion.
As Oliver demonstrates, the difference between AWOL and desertion is in the evidence, and often facts cut both ways. The accused must have attorneys who present the right set of facts to negate the intent, and limit the maximum punishment. The military criminal defense counsels at The Federal Practice Group are prepared to defend Servicemembers charged with desertion by uncovering all the facts negating the intent and effectively arguing the facts during trials.