CORE CRIMINAL LAW SUBJECTS: Crimes: Article 85 - Desertion

2010 (September Term)

United States v. Oliver, 70 M.J. 64 (the elements of desertion with the intent to remain away permanently are: (1) that the accused absented himself from his unit, organization, or place of duty; (2) that such absence was without authority; (3) that the accused, at the time the absence began or at some time during the absence, intended to remain away from his unit, organization, or place of duty permanently; and (4) that the accused remained absent until the date alleged). 

(the intent to remain away permanently as an element of desertion may be established by circumstantial evidence; among the circumstances from which an inference may be drawn that an accused intended to remain absent permanently are: that the period of absence was lengthy; that the accused attempted to, or did, dispose of uniforms or other military property; that the accused purchased a ticket for a distant point or was arrested, apprehended, or surrendered a considerable distance from the accused’s station; that the accused could have conveniently surrendered to military control but did not; that the accused was dissatisfied with the accused’s unit, ship, or with military service; that the accused made remarks indicating an intention to desert; that the accused was under charges or had escaped from confinement at the time of the absence; that the accused made preparations indicative of an intent not to return (for example, financial arrangements); or that the accused enlisted or accepted an appointment in the same or another armed force without disclosing the fact that the accused had not been regularly separated, or entered any foreign armed service without being authorized by the United States; on the other hand, the following are included in the circumstances which may tend to negate an inference that the accused intended to remain away permanently: previous long and excellent service; that the accused left valuable personal property in the unit or on the ship; or that the accused was under the influence of alcohol or drugs during the absence). 

(although duration alone does not prove an intent to remain away permanently as an element of desertion, it may nevertheless be a factor from which a factfinder might infer intent in concert with other evidence). 

(in this case, evidence that appellant was absent for an extended amount of time, nearly three years, that he had ready access to military authorities but did not report himself or inform the military regarding his alleged “crisis” with his daughter, and that despite his almost daily interaction with his sister, he made no indication to her of his current relationship with the military whatsoever was sufficient evidence for a rational trier of fact to conclude that at some point during his lengthy period of absence, appellant possessed the intent to remain away permanently, even though other facts such as living with his mother rather than finding his own residence and evidence suggesting that he only had a temporary rather than permanent job during his absence could cut the other way on intent; in addition, there is no evidence in the record that appellant ever wore his uniform or indicated in any way to anyone his ongoing military commitment, thus causing his sister to think he was out of the military; based on this, a rational factfinder could have determined that such behavior manifested an intent to remain away permanently at some point during his absence and was inconsistent with appellant’s testimony that it was always his intent to return). 

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