Q. Does it make a difference if a service member who is a deserter gets picked up by state or local police, rather than military police?

A. How a desertion ends greatly influences the confinement time that a service member who commits that offense may face.

A member who deserts in violation of Article 85 of the Uniform Code of Military Justice could face up to three years of confinement if the desertion ends by apprehension, compared to up to two years if the desertion ends some other way, according to the Manual for Courts-Martial.

The same is true for violations of the lesser-included offense of absence without leave, a violation of Article 86. Troops whose period of unauthorized absence ends by apprehension face up to 18 months of confinement, as opposed to one year if the absence was terminated another way.

For deserters picked up by civilian police, it's not always easy to say whether they were "apprehended" in a manner suitable to qualify as an aggravating factor under Article 85.

"Apprehension contemplates termination of the accused's absence in an involuntary manner; and termination otherwise is an absence ended freely and voluntarily. Mere proof of apprehension by civilian authorities is insufficient to establish that a return to military control is involuntary," the U.S. Army Court of Criminal Appeals ruled in 2013 in U.S. v. Robert L. Davis Jr.

There's little question that the desertion of a service member arrested by military police ends with that apprehension.

However, the desertion of a service member arrested by civilian police could be deemed involuntary or voluntary.

For a desertion to be deemed terminated by apprehension, "it must be shown that the accused was apprehended by civil authorities for the military rather than for a violation of state law, or that the accused was returned to the military by the civil authorities for some reason other than the accused's own voluntary request for such return," the U.S. Air Force Court of Military Review said in a 1987 ruling in the case U.S. v. James J. Washington.

When a deserter is arrested by civilian authorities on civilian charges — as opposed to being prompted by a military pickup order — the desertion will not be terminated by apprehension if he or she, or an agent acting on his or her behalf, "voluntarily discloses his status and requests delivery to the military."

But if the deserter made such a disclosure in an effort to dodge prosecution in the civilian judicial system, the termination is rendered involuntary.

The more common scenario for involuntary termination is when civilian authorities discover through independent means the deserter status of someone they arrested, under the ruling in the 1987 Washington case.

Troops charged with desertion or who want to voluntarily surrender to authorities should consult an experienced military law attorney. Depending on the circumstances, an attorney could show that the member didn't intend to permanently stay away from his or her unit or place of duty, or that his or her desertion did not end by apprehension.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.

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