
    UNITED STATES, Appellee v JAMES CHERRY, Jr., Corporal, U. S. Army, Appellant
    8 USCMA 610, 25 CMR 114
    No. 10,738
    Decided January 17, 1958
    
      Major Edward Fenig and First Lieutenant Edwin E. Allen were on the brief for Appellant, Accused.
    
      Lieutenant Colonel John G. Lee and First Lieutenant John E. Riecher were on the brief for Appellee, United States.
   Opinion of the Court

HomeR FeRGüson, Judge: ■

The accused’s unauthorized absence from his organization, terminated by apprehension, resulted in his subsequent conviction of desertion. He had pleaded guilty to the lesser offense of absence without leave, in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886. On the question of intent, the law officer instructed the court as follows:

“. . . an intent on the part of the accused to remain permanently absent may be proved by circumstantial evidence, that is evidence of facts and circumstances from which, according to the common experience of mankind, such an intent may reasonably be inferred such as evidence of a much prolonged period of absence without authority, for which there is no satisfactory explanation, . . .”

A similar instruction was held prej-udicially erroneous in United States v Soccio, 8 USCMA 477, 24 CMR 287. The conviction of desertion therefore must be set aside. The record is returned to The Judge Advocate General of the Army for reference to a board of review. The board, in its discretion, may approve the lesser offense of absence without leave and reassess the sentence or it may order a rehearing on the desertion charge.

Chief Judge Quinn concurs.

LatimeR, Judge

(dissenting):

I dissent for the reasons set forth in my separate opinion in United States v Soccio, 8 USCMA 477, 24 CMR 287.  