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Punitive Articles of the UCMJ

Article 85 Desertion

http://usmilitary.about.com/od/punitivearticles/a/mcm85.htm

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Guide Note: The offense of Desertion, under Article 85, carries a much greater punishment, than the offense of AWOL, under Article 86. Many people believe that if one is absent without authority for greater than 30 days, the offense changes from AWOL to Desertion, but that's not quite true.

The primary difference between the two offenses is "intent to remain away permanently." If one intends to return to "military control," one is guilty of "AWOL," under Article 86, not Desertion, under Article 85, even if they were away for ten years. The confusion derives from the fact that, if a member is absent without authority for longer than 30 days, the government (court-martial) is allowed to assume there was no intent to return. Therefore, the burden of proof that the accused intended to someday return to "military control" lies with the defense.

A person who is absent for just a day or two, then apprehended, could still be charged with the offense of Desertion, but the prosecution would have to show evidence that the accused intended to remain away permanently.