
    UNITED STATES, Appellee v JAMES E. BURGESS, Jr., Private E-1, U. S. Army, Appellant
    8 USCMA 163, 23 CMR 387
    No. 10,001
    Decided July 19, 1957
    
      Major Frank C. Stetson was on the brief for Appellant, Accused. Lieutenant Colonel Thomas J. Newton was on the brief for Appellee, United States.
   Opinion of the Court

Homer Ferguson, Judge:

During the course of his instructions to the court-martial, relevant to a charge of desertion, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885, the law officer in this case charged the court as follows:

“. . . You are instructed that if a condition of absence without authority is muck prolonged and there is no satisfactory explanation of it, the court would be justified in inferring from that fact alone an intent to remain absent permanently.” [Emphasis supplied.]

We discussed this instruction at length in the case of United States v Cothern, 8 USCMA 158, 23 CMR 382, and decided for reasbns stated therein that it was prejudicial error to so instruct a court-martial. Intent to remain away permanently is the key question in the instant case. The disposition of this case is governed by the law as stated in United States v Cothern, supra. Accordingly, the findings of guilty are set aside, and the record is returned to The Judge Advocate General of the Army for reference to a board of review. The board may in its discretion approve the lesser oifense of absence without leave and reassess the entire sentence, or it may order a rehearing on the desertion charge.

Chief Judge Quinn concurs.

LatimeR, Judge

(dissenting):

I dissent.

There is ample evidence to support a finding of desertion, but the point in issue involves an instructional deficiency. In United States v Cothern, 8 USCMA 158, 23 CMR 382, this day decided, we were confronted with an absence of seventeen days, while here the facts show the accused was a military absentee without authority for over six months. The difference in the length of the absence makes a difference in the appropriateness of the instructions. I would conclude from the length of the absence in the case at bar that reasonable men could infer an intent to remain away from the service permanently and, accordingly, I would affirm the finding.  