
    UNITED STATES, Appellee v STANLEY T. JORDAN, Fireman Apprentice, U. S. Navy, Appellant
    8 USCMA 339, 24 CMR 149
    No. 10,449
    Decided October 25, 1957
    
      Commander David Bolton, USN, was on the brief for Appellant, Accused.
    
      Lieutenant Colonel Charles H. Beale, Jr., USMC, was on the brief for Appellee, United States.
   Opinion of the Court

HomeR Ferguson, Judge:

A Navy general court-martial found the accused guilty of desertion, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885; for an absence of three months’ duration, terminated by apprehension. The law officer instructed the court that if it found the condition of absence much prolonged, it could “infer from that alone an intent to remain away permanently from his organization.” We have recently condemned a similar instruction in United States v Cothern, 8 USCMA 158, 23 CMR 382, and United States v Burgess, 8 USCMA 163, 23 CMR 387. The present case comes squarely within the rule laid down in those cases and reversal is required. The record is returned to The Judge Advocate General of the Navy 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.

Judge Latimer dissents.  