
    UNITED STATES, Appellee v JOHN RODRIGUES, Private E-2, U. S. Army, Appellant
    8 USCMA 596, 25 CMR 100
    No. 10,773
    Decided January 10, 1958
    
      Colonel Edward M. O’Connell and First Lieutenant Gerald G. Barton were on the brief for Appellant, Accused.
    
      Lieutenant Colonel John G. Lee, First Lieutenant Avram G. Hammer and First Lieutenant Richard W. Young were on the brief for Appellee, United States.
   Opinion of the Court

Homer Ferguson, Judge:

The accused, charged with desertion terminated by apprehension, pleaded guilty to the lesser included offense of absence without leave, in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886. He was found guilty as charged. The conviction of desertion must be set aside. The instructions which we held were erroneous and prejudicial in United States v Soccio, 8 USCMA 477, 24 CMR 287, are present here and are as follows:

“In this connection, 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 authority, for which there is no satisfactory explanation, and the manner in which the unauthorized absence was terminated.” [Emphasis supplied.]

The conviction of desertion is set aside and 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.  