Commanders’ treatment of deserters varies widely - Military Law, Military Law Advice, Ask a Lawyer - Air Force Times

Commanders’ treatment of deserters varies widely

If you think the military justice system is fair and equal from military installation to military installation, I have news for you.

It’s not.

Think I’m wrong? OK, does your installation newspaper print the photos of people accused of drunken driving? Well, Fort Drum, N.Y., does.

Honestly, I think it’s a good idea that should be adopted by other installations. I give Maj. Gen. Michael Oates, the post commander, credit for taking a tough stand. (Hopefully, he also provides mental health treatment to our heroes in uniform with the same zeal).

Oates is a tough guy. When I was deployed to Iraq, I remember him visiting my division headquarters and I recall he was the only general officer I saw who carried an M4 rifle with a full basic combat load instead of the pistol carried by most flag officers.

While Fort Drum is known by criminal defense attorneys as being tough on drunken drivers, it has a reputation — rightly or wrongly — as being not so tough on deserters.

In fact, many civilian defense attorneys representing military personnel know that they can steer people to certain installations and get a light punishment and sometimes no punishment for desertion.

How is that possible? Let me briefly explain the three main Uniform Code of Military Justice articles on this subject:

• Article 85, Desertion. This offense carries a maximum penalty of death. A myth exists that you must be absent for more than 30 days to be charged with desertion; that is not true. Desertion requires you have the intent to remain away on a permanent basis. You can be absent for a few days and be charged with desertion — but a prosecutor must show that you intended to remain away permanently.

• Article 86, Absent without leave. This offense, which carries a maximum penalty of one year of confinement, is more often treated under Article 15 procedures than courts-martial because of the light penalty involved.

• Article 87, Missing movement. This offense carries a maximum penalty of two years of confinement. The most common events that result in this charge involve missing your ship while in the Navy or Marine Corps or missing your airplane in the Air Force or Army (often a flight to hazardous duty).

Here is a little secret that many civilian defense attorneys use to help clients:

If you’re a deserter, you are generally dropped from the rolls of your unit. In the Army, for example, if you were in an elite unit (airborne, Ranger, Special Forces), you would normally be dealt with harshly by your unit. But if you are dropped from the rolls, you are no longer assigned to that unit and you generally can turn yourself into any installation or to your service’s deserter collection point.

Some installations are known for processing out deserters within three days with a general or other-than-honorable discharge, while other installations are known for confining deserters. And some deserters are returned to duty with zero consequences.

Just because you are dropped from the rolls does not guarantee you can avoid being punished by your old unit. But lack of publicity (publicity increases the odds that your command will make an example of you), time, and being dropped from the rolls seem, in my opinion, to help you get off lightly, perhaps even without a scratch.

Of course, I think rank also plays into this. If you disappear from basic training, your punishment likely will be less than if you’re an officer who bails on a combat deployment.

I’m not saying that’s the way it should be — it simply is what it is. While drunken driving is wrong and should not be tolerated, it’s not subject to the death penalty like desertion is. Yet many installations have their military police focus hard on drunken driving, but have nobody who goes after deserters.

That’s good news for the clients of defense attorneys like me. My firm’s defense of deserters has soared, and we have had solid success in getting no punishment for these offenses.

But I freely acknowledge that the lack of command emphasis on deserters is not so good for the morale of our heroes serving in combat in wartime.

The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.

Mathew B. Tully Esq. is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates (http://www.fedattorney.com), a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytimes.com.