Can Jurisdiction Affect a Desertion Case?

People often wonder the differences between a deserter apprehended by local, state, or military police. The question is valid.  How desertion ends greatly influences the term of confinement imposed upon the deserter. If a service member deserts in violation of Article 85 of the Uniform Code of Military Justice, they face up to three years of confinement if the desertion ends by apprehension.  However, the confinement term is reduced to up to two years if the desertion ends in another manner. The same applies to lesser offenses, including absence without leave, which violates Article 86. If the period of unauthorized absence ends by apprehension, the service member faces up to 18 months of confinement. However, if their absence terminates in another way, they face up to one year.

Voluntary or involuntary?

Suppose civilian police detain a deserter.  The apprehension may not be in a manner suitable to qualify as an aggravating factor under Article 85."Apprehension" indicates termination of the accused's absence by involuntary means. Additionally, "termination" refers to an absence ended freely and voluntarily by the deserter. The U.S. Army Court of Criminal Appeals ruled in 2013 in U.S. v. Robert L. Davis Jr. that proof of apprehension by the civilian authorities is not sufficient to establish that a return to military control was involuntary. Insufficient. The desertion of a service member ends when arrested by military police. However, the desertion termination of a service member arrested by civilian police is different. The military may deem the desertion termination voluntary or involuntary. The prosecutor must prove the civil authorities apprehended the deserter for desertion to be terminated by apprehension. Civil authorities must have completed the apprehension on behalf of military authorities. However, not because the deserter violated state law. Essentially, suppose the civilian authorities arrest a deserter on civilian charges. Then, in that case, desertion is not terminated by apprehension. The deserter explains their status. Additionally, the service member asks for delivery into military police custody. An agent acting on the service member's behalf may also make the explanation and request. The military would render the desertion termination "involuntary" if the service member disclosed their status to avoid prosecution in the civilian justice system.

CHARGED WITH DESERTION?

If you have been charged with desertion and want to surrender to the authorities voluntarily, you should contact a military defense lawyer from Crisp & Associates, LLC. Depending on the facts, we may show you didn't intend to stay away from your unit permanently.  Additionally, we may be able to show apprehension did not end your desertion.