LAW FROM THE CENTER

On Thursday's Presidential Primary Debate, Peter Jennings questioned General Wesley Clark about a comment Michael Moore made last Saturday, January 17, in Concord N.H., saying he'd like to see a debate between General Clark and President Bush, "The General vs. The Deserter." This referred to a 2000 story that President Bush did not show up to a drill in Alabama while his Texas Air Guard unit was training there. General Clark replied that he had heard about the charges, didn't know if they were true or not, and wanted to shift the attention to Bush's performance as commander in chief. The pundits jumped on this. Mort Kondracke, on today's The Beltway Boys (Fox News), pointed out that General Clark didn't educate Jennings that Bush's absence, if true, only amounted to being AWOL, not desertion. (Good point) He also predicted it would hurt Clark (not so good point).

I'm not a professional pundit. I don't know if it will hurt General Clark; I doubt many people know the difference, and doubt they will expect him to educate everyone of that, even if he was in the service for over 30 years.

I am a professional military man though, and a student of military justice. So for every one out there, here's the difference between AWOL and Desertion.

AWOL (absence without leave) has three non-inclusive elements, meaning fulfilling any one can result in a guilty finding:
(1) failure to go to the servicemember's appointed place of duty at the time prescribed;
(2) leaves that place before properly relieved; OR
(3) absents him/herself from the unit, organization, or place of duty where he/she is required to be at the time prescribed. See 10 USC 886.

Desertion also has three non-inclusive elements:
(1) Leaves or remains absent, without authority, from his/her unit, "with the intent to remain away therefrom permanently;"
(2) quits his/her unit/place of duty with intent to avoid hazardous duty or important service,
(3) without being discharged from one service, enlists in another one without disclosing that fact, (or enters a foreign service [this part rendered void by US v. Huff, 22 CMR 37 (1956)]). See 10 USC 885.

Seeing that, if in any remote possibility this charge is true (I am not in anyway giving credit to this wild allegation), it is apparent that (1) there was no intent to remain away permanently (he finished his service so he had to come back sometime), (2) there was no hazardous duty or important service; Democrats characterized his entire term of service in the Air Guard as such, and (3) he never served in another service or a foreign service.

The pundits are right on this one; if there was a charge (and there never was any evidence to that effect), AWOL would be more appropriate than desertion. In lawyer talk, desertion is a specific intent crime; AWOL is it's general intent brother.