
    UNITED STATES, Appellee v ADOLFO H. JIMENEZ, Private E-2, U. S. Army, Appellant
    8 USCMA 594, 25 CMR 98
    No. 10,729
    Decided January 10, 1958
    
      Colonel Edward M. O’Connell was on the brief for Appellant, Accused.
    
      Lieutenant Colonel John G. Lee and First Lieutenant Jay D. Fischer 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 surrender, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885. After instructing the court on the elements of the offense of desertion and of the lesser included offense of absence without leave, the law officer advised as follows:

“. . . [A]n intent ... to remain permanently absent may be proved by . . . 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 authority, for which there is no satisfactory explanation and that the accused surrendered at a considerable distance from his station.” [Emphasis supplied.]

The instruction was similar to that in United States v Soccio, 8 USCMA 477, 24 CMR 287, in which this Court held such an instruction to be both erroneous and prejudicial. The conviction must, therefore, be 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.  