The Nature of Hazardous Duty in Military Desertion

Abstract

A RTICLE 85(a)(2) of the Uniform Code of Military Justice' provides that an absentee who goes AWOL to avoid is a deserter, and, in time of war, punishable with death; This threat is not mere brutum Julmen; the only American serviceman executed since the Civil War for a purely military offense was shot to death by a firing squad during World War II in Europe for a violation of this provision.' This capital crime is therefore well worthy of precise definition, yet neither the Code itself nor the current Manual for Courts-MartiaP makes any attempt to define the term comprehensively or dearly. Indeed, the Manual's only example of is in a combat or other dangerous area, the first half of which is misleading and the second half of which is redundant. The lack of definite standards for the term hazardous stems in part from its introduction into the Articles of War as a novel term, without any prior military law background in the English Code,5, and it is probable that those who drafted the original statute had only the haziest ideas of its precise coverage, beyond the inclusion of combat itself. This dearth of legislative background makes it feasible and desirable to approach the problem of defining the term from a common law point of view, determining what duty is hazardous in light of sound military policy, consistent legal reasoning, and relevant service experience. This article will explore the military law precedents which have dealt with the problem of what constitutes duty. From these precedents, it is believed that some rational common law standards