
    UNITED STATES, Appellee v JAMES L. SMITH, Private E-1, U. S. Army, Appellant
    9 USCMA 88, 25 CMR 350
    No. 10,451
    Decided March 28, 1958
    
      First Lieutenant William L. Garwood argued the cause for Appellant, Accused. With him on the brief was Colonel Edward M. O’Connell.
    
    
      First Lieutenant Jay D. Fischer argued the cause for Appellee, United States. With him on the brief was Lieutenant Colonel John G. Lee.
    
   Opinion of the Court

Homer Ferguson, Judge:

At his trial by general court-martial, the appellant entered a plea of guilty to the offenses of absence without leave and escape from confinement, in violation of Articles 86 and 95, Uniform Code of Military Justice, 10 USC §§ 886 and 895, respectively. He was also charged with the offense of desertion, in violation of Article 85 of the Code, supra, 10 USC § 885, to which he pleaded not guilty but guilty of the lesser offense of unauthorized absence. The only issue remaining for the court-martial’s consideration was the question of his intent, which was resolved against him. On this appeal several alleged errors in the law officer’s instructions and in the staff judge advocate’s post-trial review were assigned as grounds for reversal. In the view we take of the case, however, it is only necessary to consider the correctness of the law officer’s instruction that an intent on the part of the accused to remain absent permanently may be inferred from “evidence of a much prolonged absence without authority, for which there is no satisfactory explanation.” A similar in struction was held prejudicially ér-roneous in United States v Soccio, 8 USCMA 477, 24 CMR 287. The same holding must result here.

The appellant’s conviction of desertion is set aside. The record of trial is returned to The Judge Advocate General of the Army for reference to a board of review which may, in its discretion, 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 expressed in my separate opinion in United States v Soccio, 8 USCMA 477, 24 CMR 287.  