
    UNITED STATES, Appellee v WILLIAM NELSON, Private First Class, U. S. Army, Appellant
    8 USCMA 278, 24 CMR 88
    No. 10,238
    Decided September 27, 1957
    
      Major Edward Fenig and First Lieutenant Edwin E. Allen were on the brief for Appellant, Accused.
    
      Lieutenant Colonel Thomas J. Newton and First Lieutenant Jay D. Fischer were on the brief for Appellee, United States.
   Opinion of the Court

Homer Ferguson, Judge:

The accused in this case pleaded not guilty to desertion in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885, but guilty to the lesser offense of absence without leave in contravention of Article 86, Uniform Code of Military Justice, 10 USC § 886, for an absence of some fifteen months’ duration, terminated by surrender. The court-martial found the accused guilty as charged. The sole issue before us concerns the correctness of the law officer’s instructions. Prior to deliberation on the findings, the court was instructed that if the condition of absence without proper authority was much prolonged and there was no satisfactory explanation of it, the court would “be justified in inferring from that alone an intent to remain absent permanently.” We are unable to distinguish this instruction from the one we recently condemned in United States v Cothern, 8 USCMA 158, 23 CMR 382, and United States v Burgess, 8 USCMA 163, 23 CMR 387. For the reasons set forth in those decisions, the accused’s conviction must be reversed. 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 offense of absence without leave and reassess the sentence or it may order a rehearing on the principal offense charged.

Chief Judge Quinn concurs.

Latimer, Judge

(dissenting):

I dissent for the reasons I expressed in United States v Cothern, 8 USCMA 158, 23 CMR 382, and United States v Burgess, 8 USCMA 163, 23 CMR 387.  