
    UNITED STATES, Appellee v SAMUEL F. NELSON, Private E-2, U. S. Army, Appellant
    8 USCMA 595, 25 CMR 99
    No. 10,737
    Decided January 10, 1958
    
      Major Frank C. Stetson and First Lieutenant Judson A. Parsons, Jr., were on the brief for Appellant, Accused.
    
      Lieutenant Colonel John G. Lee and First Lieutenant John E. Riecker were on the brief for Appellee, United States.
   Opinion of the Court

Homer Ferguson, Judge:

The accused was found guilty by general court-martial of desertion terminated by apprehension, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885. The conviction of desertion must be set aside because of erroneous and prejudicial instructions, which were as follows:

“The court is advised that an intent on the part of an 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 proper authority for which there is no satisfactory explanation and that while absent the accused was in the neighborhood of a military post and did not surrender to military authorities.” [Emphasis supplied.]

A similar instruction was held to be both erroneous and prejudicial in United States v Soccio, 8 USCMA 477, 24 CMR 287. The conviction of desertion is, therefore, 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 affirm 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.

Judge Latimer dissents.  