(dissenting):
I dissent.
This case portrays aptly how we sometimes invade the field of the fact-finding tribunals even to the extent of placing inferences in the trays of a balance and arriving at a conclusion that the weight of one offsets the weight of the other, deciding, of course, that the credibility of both sources must be equal. Two quotations from the majority opinion are all that is needed to show the method by which the majority concludes the evidence is insufficient. “Imminent overseas service at the time of absence is a factor which normally will tend to support an inference of intent to remain absent permanently, but here this factor appears to be cancelled out by the accused’s testimony — uncontradicted and, in view of other facts, reasonable — that he had volunteered to return to the combat theatre.” “The factor based on imminence of overseas combat duty is can-celled out by this accused’s professed and uncontradicted desire for such duty.”
If I were to compare this case with others involving similar theories, I would not consider it controlled by United States v. Peterson (No. 199), 3 CMR 51, decided April 17, 1952. Rather I would catalogue it as being governed by United States v. Ferretti (No. 213), 3 CMR 57, decided April 18, 1952, and allied cases. To me the Peterson case is entirely different. In that case the reasons for the accused going absent and the' facts and circumstances while he was in that status pointed clearly to an intent to return. He had some color of reason for leaving and he did in fact return. His statements were consistent with his conduct and both established a pattern of not intending to remain away permanently.
If we compare Peterson’s testimony with the testimony of this accused we find the former meets credible standards of consistency while this equals the height of inconsistency. Here the accused sought to create the impression he wanted to go to Korea and yet he had to be apprehended to get him back to military control. I do not find one iota of evidence justifying accused’s absence or explaining his reason for remaining away thirty-three days. This accused knew he was ordered overseas on a March 1952 shipment, he received his travel authorization, allowances, and leave time and yet he had to be apprehended in April 1952. This seems a bit inconsistent with a burning desire to return to Korea. Whatever original motive the accused may have had in volunteering for overseas duty, his outward manifestations thereafter, upon which an intent is generally inferred, negate any intent to return to the service. Moreover, even though he became a witness in his own behalf, his testimony did not touch on his intent. His evidence consisted of no more than a statement that his name was on the overseas order because he waived his rights to stay in the United States. That is hardly an explanation of a prolonged absence.
My associates are of the opinion the evidence of shipment overseas is of no consequence as a factor bearing on intent for the accused had previously waived his right to stay in the States and, therefore, his going or remaining absent was not influenced by a desire to miss shipment to Korea. In the first place, that view presupposes that the court-martial must accept accused’s story as gospel truth. I know of no rule of law which requires that and this record gives evidence of why such a rule would be absurd. A look at the ex*493hibit showing previous convictions, which was admitted into evidence for sentence purposes, will disclose that at the time the accused volunteered, he was serving time in a stockade for a previous absence without leave. While I cannot consider this exhibit for sufficiency of the evidence, I can use it to point out the fallacy inherent in an opinion which seeks to balance off testimony without regard to interest, bias or credibility. In the second place, the view announced by the majority overlooks the fact that the accused might have changed his mind after waiving his rights to stay in the States. It must be remembered that the waiver occurred before he went absent and he may have entertained motives different than those suspected by the court.
As I view the majority opinion, it appears to me that the Court has determined what inferences the court-martial members should have drawn and those they should have rejected. This is neither our duty nor our prerogative. If the inferences drawn by the court-martial are reasonable, we should affirm. Tested by our holdings in other cases, I believe they are in this case and I, therefore, disagree with the results reached by the Court.