Some have wondered if it makes a difference if a service member who is a deserter gets picked up by local, state or military police. This is a valid question since the manner in which a 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, he or she faces up to three years confinement if the desertion ends because they have been apprehended, versus up to two years if the desertion ends in another manner, according to the Manual for Courts-Martial.
The same is true for lesser offenses, including absence without leave, which is a violation of Article 86. If a service member’s period of unauthorized absence ends by apprehension, he or she faces up to 18 months of confinement. However, if their absence is terminated in another way, they face up to one year.
If a deserter is picked up by civilian police, it’s not always clear if they were “apprehended” in such a way that it would be suitable to qualify as an aggravating factor under Article 85.
“Apprehension” indicates termination of the accused’s absence by involuntary means, otherwise, termination refers to an absence that was 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.
It’s understood that desertion of a service member ends when they are arrested by military police. However, the desertion of a service member who’s been arrested by civilian police can be deemed voluntary or involuntary.
In order for a desertion to be terminated because the service member was apprehended, it must be proven that the deserter was apprehended by civil authorities for the military, and not because the deserter violated a state law.
Essentially, if a deserter is arrested by the civilian authorities on civilian charges – not because they have been prompted by a military pickup order – then the desertion is not terminated by apprehension if the deserter, or an agent acting on their behalf, voluntarily explains their status and asks to be delivered to the military.
Further, if the service member made the disclosure in an effort to dodge being prosecuted in the civilian justice system, the termination will then be rendered “involuntary.”
HAVE YOU BEEN CHARGED WITH DESERTION?
If you have been charged with desertion and you want to voluntarily surrender to the authorities, you should contact a military defense lawyer from Crisp & Associates, LLC.
Depending on the facts of your case, we may be able to show that you didn’t intend to permanently stay away from your unit or place of duty, or we may be able to show that your desertion didn’t end after being apprehended.