Abstract

Article 85(a) (2) of the Uniform Code of Military Justice punishes as a deserter anyone who quits his organization or place of duty with intent to avoid hazardous duty or shirk important service. The crime is capital in time of war, and indeed the only serviceman executed during World War II for a purely military offense was shot by firing squad for this crime. Hence the offense is of considerable importance, and the manner in which so capital a military crime is to be proven is worth careful examination.

The earliest standard for proving the offense is found in the 1921 Manual for Courts-Martial, which states that it should appear that at the time accused went AWOL either he or his unit was under orders or anticipated orders for duty and that accused's "absence without leave was so timed as to appear calculated to enable him to avoid such hazardous duty or to shirk important service, as the case may be."' The present manual is equally cryptic and incomplete. After noting that the proof should show that accused "knew with reasonable certainty" that he would have to perform the duty in question, the Manual suggests three ways of showing this: that accused was informed of the imminence of the duty, that he was present when his unit was so informed, or that accused was away for so long that he must have had reasonable cause to know that he would miss the duty in question.

It is obvious that the above discussion can hardly be considered definitive or all-inclusive. Indeed, in all probability, it omits more situations than it covers. At best, the present Manual presents only fragmentary suggestions; at worst it is absolutely silent. This cannot be deemed to be an adequate yardstick for testing the legal significance of various factors in proving short desertion.

This article will explore the factors considered, and which should be considered, in the proof of the intent to avoid hazardous duty or shirk important service. In so doing, it will seek to clarify the various relevant cases and to point up some of the inadequacies of the present manual's standards.

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