
    UNITED STATES, Appellee v LEONARD R. FLEMING, Basic Airman, U. S. Air Force, Appellant
    8 USCMA 474, 24 CMR 284
    
      No. 10,095
    Decided December 13, 1957
    
      Captain John H. Leonard argued the cause for Appellant, Accused.1 With him on the brief was Lieutenant Colonel Ellis L. Gottlieb.
    
    
      Major Fred C. Voiuell argued the cause for Appellee, United States. With him on the brief was Lieutenant Colonel Robert W. Michels.
    
   Opinion of the Court

ROBERT E. Quinn, Chief Judge:

At the accused’s trial for desertion, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885, the law officer instructed the court-martial, in part, as follows:

“. . . If you find that the accused was absent without proper authority, and that such absence was as a matter of fact much prolonged, and if you further find there is nothing in the. entire case which explains such absence to your satisfaction, you will be justified in inferring from that alone an intent to remain absent permanently.”

The instruction is wrong. United States v Cothern, 8 USCMA 158, 23 GMR 382. Other parts of the instruction, which were patently prepared with care and good sense, clearly advise the court members that they must consider all the evidence in the case to determine “whether or not the accused possessed an intent to remain permanently absent.” The latter parts of the instruction, however, did not remove the incorrect instruction from the court-martial’s consideration. As a result,' the court was instructed both “rightly and wrongly on a material issue.” United States v Noe, 7 USCMA 408, 22 CMR 198. We cannot guess which instruction the court-martial followed in its deliberation on the accused’s guilt or innocence. Since it may have reached its findings on the basis of the incorrect instruction, reversal of the accused’s conviction is required. United States v Noe, supra.

The decision of the board of review is reversed and the findings of guilty and sentence are set aside. The record of trial is returned to The Judge Advocate General of the Air Force for resubmission to the board of review. In its discretion, the board of review can affirm a finding of guilty for an unauthorized absence, in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886, as to which the accused entered a plea of guilty or it may order a rehearing.

Judge FERGUSON concurs.

Judge LATIMER dissents.  