NOTE 1: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT:
(1) In time of war: Death or other lawful punishment. (Criteria)
(2) Terminated by apprehension: DD, TF, 3 years, E-1. (Category 2)
(3) Otherwise: DD, TF, 2 years, E-1. (Category 1)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data) did, on or about __________, (a time of war) without authority and with intent to remain away therefrom permanently, absent himself/herself from (his) (her) (unit) (organization) (place of duty), to wit: __________, located at (__________), and did remain so absent in desertion until ((he) (she) was apprehended) on or about __________.
c. ELEMENTS:
(1) That (state the time and place alleged), the accused absented (himself) (herself) from (his) (her) (unit) (organization) (place of duty), that is, (state the name of the unit, organization, or place of duty);
(2) That the accused remained absent until (state the alleged date of termination of absence);
(3) That the absence was without authority; (and)
(4) That the accused, at the time the absence began or at some time during the absence, intended to remain away from (his) (her) (unit) (organization) (place of duty) permanently; [and]
NOTE 2: Aggravating factors alleged. In the event one or more of the aggravating factors are alleged, the military judge must advise the court members of the aggravating factors as elements.
((5)) That the accused’s absence was terminated by apprehension; [and]
((6)) That the accused’s absence was in time of war.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
The intent to remain away permanently from the (unit) (organization) (place of duty) may be formed any time during the unauthorized absence. The intent need not exist throughout the absence, or for any particular period of time, as long as it exists at some time during the absence.
(A prompt repentance and return, while material in extenuation, is no defense.) (It is not necessary that the accused be absent entirely from military jurisdiction and control.)
In determining whether the accused had the intent to remain away permanently, you should consider the circumstances surrounding the beginning, length, and termination of the charged absence and how those circumstances might bear upon the element of intent. No one factor is controlling and each of them should be considered by you.
NOTE 3: Dropped from the rolls (DFR). If the phrase “DFR” or “dropped from the rolls as a deserter” appears in evidence, the following additional instruction should be given:
The term (DFR) (dropped from the rolls as a deserter), as contained in (Prosecution Exhibit __) (the testimony of ________), is purely an administrative term. You cannot consider this term as evidence of an intent on the part of the accused to remain away permanently.
NOTE 4: When desertion terminated by apprehension is alleged. The following instructions are pertinent to the issue of termination by apprehension:
“Apprehension” means that the accused’s return to military control was involuntary. It must be shown that neither the accused nor persons acting at the accused’s request initiated the accused’s return.
(That the accused was apprehended by civilian authorities, for a civilian violation, and was thereafter turned over to military control by the civilian authorities, does not necessarily indicate that the accused’s return was involuntary. Such return may be deemed involuntary if, after the accused was apprehended, such civilian authorities learned of the accused’s military status from someone other than the accused or persons acting at the accused’s request.)
(In addition, the return may be involuntary if, after being apprehended by civilian authorities, the accused disclosed (his) (her) identity as a result of a desire to avoid trial, prosecution, punishment, or other criminal action at the hands of such civilian authorities. However, if the accused disclosed (his) (her) identity to the civilian authorities because of the accused’s desire to return to military control, the accused’s return should not be deemed involuntary or by apprehension.)
(The arrest of an accused by civilian authorities does not, in the absence of special circumstances, terminate (his) (her) unauthorized absence by apprehension where the record does not show such apprehension to have been connected with or done on behalf of the military authorities. Thus, in the absence of special circumstances, mere apprehension by civilian authorities does not sustain the government’s burden of showing that the return to military control was involuntary.)
NOTE 5: When apprehension is contested. When the question of apprehension is at all controverted, the following instruction must be given. If both apprehension and time of war are alleged, the instruction must be modified to reflect that the accused may be convicted of desertion even if neither of the aggravating circumstances are alleged:
You will note that of the elements that I have listed, only the last element concerns apprehension. To convict the accused of desertion terminated by apprehension, you must be convinced beyond a reasonable doubt of all the elements, including the element of apprehension. If you are convinced of all the elements except the element of apprehension, you may convict the accused of desertion, but not of desertion terminated by apprehension.
NOTE 6: Voluntary termination and casual presence. When some evidence has been presented that raises the issue of voluntary termination of an unauthorized absence prior to the end date alleged in the specification (see US v. Rogers, 59 MJ 584 (ACCA 2003)), the following instruction should be given:
There has been some evidence that the accused was present (on a military (installation) (base) (camp) (post)) (in a military facility) (at/on board—location) prior to the end date alleged in (The) Specification _____ of (The) (Additional) Charge _____. Casual presence for personal reasons (on a military (installation) (base) (camp) (post)) (in a military facility) (at/on board—location), without more, does not terminate an unauthorized absence. To voluntarily terminate an unauthorized absence, the absentee must physically present (himself/herself) to someone with authority to apprehend (him/her), that is, a commissioned officer, a noncommissioned officer, or a military policeman (or __________) with the intent to return to military duty. The absentee must properly identify (himself/herself) and disclose (his/her) absentee status and submit to the control exercised over (him) (her). If the absentee does not disclose (his/her) status, the person to whom the absentee presented (himself/herself) must have been aware already of the absentee’s status, or had a duty to inquire and could have, with reasonable diligence, determined the absentee’s status.
The prosecution bears the burden of proof to establish beyond a reasonable doubt that the accused did not voluntarily terminate (his) (her) absentee status. In order to find the accused guilty of an unauthorized absence for the entire period alleged in the specification, you must be convinced beyond a reasonable doubt that the accused did not voluntarily terminate (his) (her) absentee status prior to the end date alleged in the specification.
(If you find that the accused went from or remained absent without authority as alleged, but voluntarily terminated (his) (her) absentee status prior to the end date alleged, but later absented (himself) (herself) from (his) (her) (unit) (organization) (place of duty at which (he) (she) was required to be), you may find the accused guilty, by exceptions and substitutions, of two or more separate unauthorized absences under one specification, provided that each unauthorized absence is included within the overall period alleged in the specification.)
NOTE 7: Multiple unauthorized absences under single specification. An accused may be found guilty of two or more separate unauthorized absences under one specification, provided that each absence is included within the period alleged in the specification and provided that the accused was not mislead. If an accused is found guilty of two or more unauthorized absences under a single specification, the maximum authorized punishment shall not exceed that authorized if the accused had been found guilty as charged in the specification.
NOTE 8: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), and Instruction 7-15, Variance, are ordinarily appropriate. If evidence of previous convictions or other acts of misconduct have been admitted as bearing on intent, the applicable portion of Instruction 7-13-1, Other Crimes, Wrongs or Acts Evidence, must be given.