Wesley Clark has been criticized for refusing to distance himself from filmmaker Michael Moore's assertion that George W. Bush, who served with the Air National Guard, is a "deserter." What is the formal definition of desertion in the military, and does it jibe with the particulars of President Bush's case?
The crime of desertion is covered in Article 85 of the Uniform Code of Military Justice. A deserter, in addition to not showing up for work, must also have the "intent to remain away therefrom permanently." In a court martial, prosecutors can demonstrate such intent by presenting evidence that the accused ditched his military uniforms, bought a bus ticket out of town, or remarked to a friend that he was never, ever heading back to base. Evidence to the contrary might include leaving behind personal property, a lengthy record of otherwise first-rate service, or testimony that the accused's absence was due to substance abuse.
During times of crisis, a soldier can be ruled a deserter even when she has not demonstrated any intent to leave permanently. A member of the armed forces who takes off "with intent to avoid hazardous duty or to shirk important service" can also be found guilty of desertion, and the punishment for abandoning one's duty during combat can include execution. (Click here for Explainer's previous take on the military death penalty.) In rare instances, a desertion court martial is also possible when someone joins another branch of the military, or a foreign army, without first being "regularly separated"—that is, free and clear—from their previous post.
As a practical matter, the military usually divides "absent without leave" cases from desertions by considering the length of the accused's time away. According to a 2002 report by the U.S. Army Research Institute, a missing soldier is considered AWOL until the 31st day of his absence, at which time his status is changed to "Dropped From Rolls," the administrative term for desertion. Few soldiers classified as DFR ever face a court martial for desertion, however; the report states that 94 percent of DFRs are simply given less-than-honorable discharges.
Strictly speaking, Moore's charge is incorrect. "Deserter" is a precise legal term reserved for those who've been court martialed and found guilty. Bush, by contrast, was honorably discharged in 1973. The question then becomes whether Bush's status should have ever been changed to the equivalent of DFR during his term with the Air National Guard, which began after his graduation from Yale in 1968.
The president's allies and critics both seem to agree that Bush's service was beyond reproach until May of 1972, when he left Houston, where he was stationed, for Alabama, to work on a Republican senatorial campaign. The sticking point is whether Bush ever reported for duty with the 187th Tactical Recon Group, based in Montgomery, Ala., as he was supposed to. Bush claims that he did indeed show up for duty, though he did not fly. (A Boston Globe investigation from 2000 quotes a campaign spokesman who said Bush performed "odds and ends" in Montgomery.) Though Bush admits to missing a few required weekends while in Alabama, he says he made up that time when he returned to Texas the following year. He received his honorable discharge in October of 1973, eight months before his scheduled discharge, so he could attend Harvard Business School.
There are conflicting accounts as to whether Bush ever really served in Alabama. The commander of the 187th Tactical Recon Group told the Globe that he has no recollection of Bush's presence. Several Bush friends, however, have insisted that they distinctly remember the president attending drills in Montgomery. The issue has become a partisan lightning rod, with organizations on both right and left offering differing takes on the commander in chief's time with the Air National Guard.