USA: Treatment of deserters from the United States Navy and Marines, once returned to the United States after an absence of three years or more

The United States Office of the Navy, Judge Advocate's Offices, Criminal Law Division, provided the following information in a telephone conversation with a research officer at the IRBDC. The staff attorney stated that the penalty for desertion depends upon whether the person is charged with desertion proper or unauthorized absence. The key difference lies in the intent, in that the courts must demonstrate that the deserter intended to remain away permanently. The Navy attorney continued by stating that it is usually very difficult to prove this intent. The maximun sentence if convicted, however, is three years confinement, a forfeiture of pay and benefits and a dishonourable discharge.

Unauthorized absence carries a sentence of one year confinement, forfeiture of pay and benefits and a dishonourable discharge. If the person concerned were apprehended instead of surrendering, the penalty increases to 18 months.

However, the Navy attorney stated that most absences go to Special Courts Martial. In these instances, the maximum sentence issued is six months confinement and a Bad Conduct Record. There is a social stigma attached to such a record in the United States and furthermore, the person is deprived of all benefits usually accruing to retired armed forces personnel. A trial in such a situation signals, according to the attorney, that the penalties were handed out by a Misdemeanour Court, not a general court.

Another option mentioned by the attorney at the Judge Advocate's Office is a request, by the person concerned, for an administrative discharge from the armed forces. The resulting record, the Other Than Honourable Discharge, is not punitive. But there is a similar stigma and of course, the same total loss of benefits which results from a Dishonourable Discharge or Bad Conduct Record. In the United States Navy, such discharges are issued by an Admiral and not by a court and no court record is generated.

The staff attorney finished his summary of the penalties by saying that is is theoretically possible to escape punishment altogether, because in many cases the deserter, once apprehended, is simply returned to the unit from which he or she deserted. The unit's commanding officer can then decide what avenue to pursue. The person concerned, if absent for a short period of time, can be put up on charge and have the days absent removed from their leave payout. But this usually applies only in short-term absences in which the deserter has an acceptable reason.

The Navy no longer actively pursues deserters with the assistance of the Federal Bureau of Investigations as it once did. The staff attorney claimed that because of the increasing computerization of police forces in the U.S., most of those apprehended result from a routine motor vehicle check or identity check in which their military status appears on the computer information provided the police officer.

The American Naval attache to Canada commented that the penalty varies from case to case, but the charges are quite often dismissed. Otherwise, there may be a small fine. The attache added that confinement is rare because of the large numbers of people already in prison in the U.S.