
    UNITED STATES, Appellee v ALEJANDRO COLLAZO-BERMEJO, Private E-2, U. S. Army, Appellant
    8 USCMA 491, 24 CMR 301
    No. 10,245
    Decided December 13, 1957
    
      First Lieutenant Edwin E. Allen argued the cause for Appellant,' Accused. With him on the brief were Major Frank C. Stetson, First Lieutenant Lawrence R. Fullem and First Lieutenant Jerome H. Gerber., First Lieutenant Jay D. Fischer argued the cause for Appellee, United' States. With him on the brief were Lieutenant Colonel John G. Lee and; ■Captain Thomas J. Nichols.
    
   Opinion of the Court

Homer Ferguson, Judge:

This is another in a series of cases upon which review was granted in or'der to consider the correctness of the law officer’s instructions relating to the offense of desertion. The instruction was as follows:

“As to length of absence without authority, it is within the province of the court to determine whether or not the length of time involved, if in the absence of a satisfactory explanation, is of sufficient duration from which it can infer an intent to remain away permanently. You must determine whether or not the absence was much prolonged, and if so, whether or not there was a satisfactory explanation made for it.”

Substantially the same instruction has been held prejudicially erroneous in United States v Soccio, 8 USCMA 477, 24 CMR 287. It is error for the law officer to focus the court’s attention upon one fact — length of absence — to the exclusion of others, thereby permitting the court to infer therefrom an intent to remain away permanently. Such an instruction necessarily precludes the court from giving consideration to all the other evidence in the case. Additionally, we have held it error for a law officer to advise a court that it could infer an intent to remain away permanently from the length of the accused’s absence, in the absence of a “satisfactory” explanation. The burden of proof is never upon an accused to convince a court-martial of his innocence.

The decision of the board of review is reversed. The record of trial 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 on that basis, 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.  