Desertion with Intent. — Court-Martial Trial Practice Blog

The Army Court of Criminal Appeals has decided United States v. Lanier, No. 20080296 (A. Ct. Crim. App. 4 February 2009). The opinion has some current value, even though this is a guilty plea and adequacy of the providency case.

In this case the appellant was granted EML from duty in Iraq because his father had had a stroke. Appellant failed to return from his EML. He never asked for his EML to be extended or a humanitarian transfer. At trial he plead guilty to desertion with the intent to avoid hazardous service, in violation of Article 85(a)(2), UCMJ.

While deployed his squadron was engaged in frequently hostile operations. The unit suffered numerous combat casualties while deployed, including at least three deaths during the time appellant served with his unit in Iraq. At several points . . . , appellant reiterated that his duties in Iraq were dangerous and hazardous, with a significant risk of violence and injury due to hostile encounters. The stipulation of fact makes clear the hazardous character of the duty continued even after appellant quit his unit. Slip op. at 2.

Here the court discussed the difference between the "intent" to avoid the duty, a specific intent, as opposed to the motive or reasons for avoiding the duty. According to the court the fact appellant stayed away because he wanted to take care of his father was not relevant to intent, but was a motive to stay away and was potential mitigation evidence.

For example, a person who takes money with the intent to steal it does not negate that intent because he intends to use the money to buy food for a hungry child. Unless it constitutes an affirmative defense, this motive or ultimate goal, no matter how compelling, cannot negate the accused's immediate intent. Slip op. at 6.

The judge in this case was careful to rule out the potential defense of duress associated with this motive. It also appears clear that the trial judge understood that, unless it constituted a defense, the motive here did not negate the required criminal intent and therefore was not inconsistent with appellant’s plea of guilty. Id.