Opinion of the Court
HomeR FERGüson, Judge:The accused here was charged with desertion for an absence of seven months’ duration, terminated by apprehension, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885. He pleaded not guilty to the principal offense, but guilty to the lesser offense of absence without leave, in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886. The court-martial found him guilty as charged. This is another in a series of cases in which the law officer instructed the court that if the condition of absence is much prolonged and there is no satisfactory explanation of it, “the court would be justified in inferring from that fact alone an intent to remain absent permanently.” This instruction is erroneous, and, accordingly, the accused’s conviction must be reversed. United States v Cothern, 8 USCMA 158, 23 CMR 382, and United States v Burgess, 8 USCMA 163, 23 CMR 387. The record is returned to The Judge Advocate General of the Army for reference to a board of review. The board may, in its discretion, approve the lesser offense of absence without leave and reassess the sentence or it may order a rehearing on the charge of desertion.
Chief Judge Quinn concurs. Judge LatimeR dissents.