(concurring):
I concur.
As I interpret the exhibits they are relevant as bearing on an intent to avoid military service. While among other factors they establish two voluntary returns to military control, the motives actuating the accused to return do not appear. Quite often an errant serviceman is convinced against his will by his friends or relatives to return and escape possible prosecution for desertion, and an unexplained return does not always establish an intent to remain with the service. An accused’s return ought to be evaluated in the light of his total course of conduct over the period involved. In this instance we find that, in a fourteen-month period of time, accused went absent without authority three times; and he was either in that status or in confinement each and every day of that period. When he went absent the second time, he was awaiting trial for the first offense, and he was in an arrest status at the time he depai’ted. When he left without authorization on the third occasion, he had just been released from eight months’ confinement. While it may be asserted by some that the exhibits do not show an intent to remain away permanently, that is not the manner in which I would interpret them. They seem to me to suggest that the Naval service was so distasteful to the accused that he could only be found on station when he was under some form of restraint.
Stated specifically by date, the record discloses that on May 13, 1952, accused went absent without leave. He remained in that status until July 30, 1952, when he surrendered at Roanoke, Virginia, which was not his home station. On his return to his unit at Norfolk, Virginia, which was some time after his return to military control, *269he was placed in arrest awaiting trial on his first absence offense. One week later, on August 7,1952, he broke arrest by again going absent without authority, and he did not return from that absence until September 21, 1952. On that return to his station, he was charged with committing three offenses, namely, the two absences without authority and the breach of arrest. On December 11, 1952, a general court-martial convicted him of the three offenses and sentenced him to six months’ confinement. He finished serving his time on those charges on or about May 11, 1953, and upon gaining his freedom, he left his station without authority for the third time. That absence extended for some 72 days before it was ended involuntarily by the Federal Bureau of Investigation. Pretermitting any consideration about the loss of time after his last apprehension, accused was not present for duty at any time from May 13, 1952, until July 24, 1953. Notwithstanding two unexplained voluntary returns, the complete picture painted by the exhibits show him as a person who has a profound and utter dislike for the Naval service. While it may be true that under certain circumstances a number of absences without authority may be shown without casting light on an intent to remain away permanently, under different conditions three departures, coupled with other facts which show a adamant refusal to serve, may help in furnishing a proper base for an inference of an intent not to return. Certainly, one who prefers to spend his time in either being absent or held in confinement for long periods of time is more apt to conclude he will not return to his service when he has secured his freedom than is one who stays within the law and performs his duty. Furthermore, the experience encountered in doing eight months in confinement for his previous delicts may carry some weight in causing an accused not to return until compelled to do so.
I believe the law officer, when he considered the admissibility in the out of court hearing, arrived at the correct conclusion. In support of his ruling he made the following statement:
“Notwithstanding the fact that! the two previous absences were ter-i minated by surrender, the law officer feels that all of the exhibits taken as a whole show that the accused has been either absent from military authority without proper authority or has been in confinement for a period exceeding 14 months. That is down through the date the present offense is alleged to have terminated, namely 24 July 1953. I feel that this fact does bear in some degree on the question of intent of the accused and that view is stated regardless of the manner of the termination of the previous absences. They would certainly indicate to me that for some reason known to the accused, and unknown to me, that he is probably dissatisfied with the military service in some manner. Paragraph 164a of the Manual on page 314 indicates that the inference of an intent to desert may be drawn from among other things: ‘that he was dissatisfied in his company or on his ship or with the military service;’. I think in view of the language in the Powell case and particularly so in view of the language of the concurring Judge Brosman, Prosecution Exhibits Numbers 1, 5, and 6 for Identification are admissible, and I intend to admit them.”
I am content to support the reasons he sets out in the quotation and I, therefore, join the Chief Judge in his affirmance.