(concurring in the result)
I concur in the result.
My dissent in United States v. O’Neal (No 25) 1 USCMA 138, 2 CMR 44, 55, decided February 7, 1952, explains in part why I do not concur outright. Intent is a state of mind. It must necessarily be established by circumstantial evidence, and I would apply the legal principle which fits that type of evidence; that is, if the facts and circumstances do not, as a matter of law, permit the members of the court-martial to draw an inference of intent on the part of the accused to abandon.the service permanently, then the conviction cannot be affirmed.
*323The only evidence to furnish a predicate for that inference was the length of absence and the distance from the unit. The Court’s opinion quotes a Navy regulation which, in substance, is that if the absence without leave is much prolonged and there is no satisfactory explanation of it the court-martial will be justified in inferring an intent to remain absent permanently. The inference suggested by that regulation is based on prolonged and unexplained absence. Here, the accused assumed the burden to explain his absence, and every fact and circumstance disclosed by the record, save the length of the absence, lend credence to his explanation. The death of his brother created a situation he felt required his return home on leave. He stayed at home except when returning to the station. Twice in the period of some 55 days he voluntarily returned to the service. He did not conceal his identity. He did not dispose of his military paraphernalia. He indicated an intent to make the service his career as he had served 4 years in the Marine Corps and approximately 2 months prior to the first absence he had reenlisted for 6 years. He had expressed no dissatisfaction with his unit or with the service. Substantial indicia of intent to return are present. While, as previously stated, unexplained absence may be a base, for an inference of intent not to return, explanation which reasonable men must conclude was satisfactory demolishes both the base and the inference.
The distance accused travelled away from the station is of little importance in this case, as he was authorized to go to his home in Michigan on leave. After overstaying- his leave he surrendered in Michigan, started the return journey to his unit, reached Washington, D. C., and again returned to his home. He terminated his second absence by travelling from Michigan to Camp Lejeune, North Carolina, and reported in at his home station. Such distances as he travelled between these various points lend support to an inference of intent to return to the service.
In my judgment, the decision of the board of review must be reversed because the finding of guilty is based on an inference drawn by the court-martial which is wholly unsupported by any evidence.