(dissenting) :
I dissent.
There are two errors in this opinion of which I take cognizance. First, the law officer did not direct a finding against the accused and the authorities cited to support that proposition are inappro*391priate. Merely because the posture of the evidence was such that the lesser offense was not raised as a reasonable alternative to desertion and the law officer took that particular offense away from consideration by the court-martial, that did not compel them to convict the accused. They could have found him not guilty. Any compulsion in this record is found in the evidence and not in the instructions. If my views are not the law, then a law officer cannot in any case tell a court-martial that lesser included offenses are not in issue.
The second error is found in the holding that absence without leave was raised reasonably by the testimony. Of course, I am in error if a reasonable person could possibly conclude that this accused did not intend to remain away permanently, but I surmise the word permanent is used by the Code in the sense that the status of absence is lasting and not temporary or transient, and this accused, in spite of his self-serving declaration to the contrary, removed all doubt about any intent to return.
The facts which the Court mentions as being favorable to the accused with three exceptions are not evidence of an intent to return. First, he wore his uniform in France. That was necessary during the war years and shortly thereafter to keep from being apprehended as a deserter. Second, he carried an identification card. That, too, was necessary to remain absent successfully, and it aided him in his plan to escape detection. Furthermore, it offered a means of getting meals and lodgings at camps maintained for the benefit of transient servicemen and it gave authenticity to his false passes and furlough orders. Third, he used his own name. He had to do that to prevent arousing suspicion when he used his only secure means of identification. None of those facts show a fighting desire to return. On the contrary they show aids to his plan to escape detection.
The three exceptions mentioned above are his statement to his friend Lieutenant Colonel Proulx that he intended to. turn himself in, his mental relief on being apprehended and his statement on the witness stand that he did not intend to remain away permanently. As to his statement to the Lieutenant Colonel, it is interesting to note that this longtime friend, some eleven years after the commencement of the unauthorized absence, on five occasions importuned the accused to return. In response of these importunities accused stated he intended to surrender. Significantly enough he did not say when, and he did not surrender. Whether he intended to return or not, what other answer would the accused give a lifelong friend who was in the military service?
In what manner the fact that accused was mentally relieved when apprehended shows he intended to return remains a mystery to me. I imagine that any person who has for nearly twelve years had to evade the toils of the law would upon finally being caught feel relieved that his life of deceit had ended. That relief would be the same whether the offense was wartime absence without leave or desertion. Both crimes carried severe penalties.
That leaves for discussion the question of accused’s own testimony that he intended to return. In the light of the evidence I hereinafter set out, that self-serving statement is so inherently improbable and unworthy of belief that the law officer could reject it in toto. This was a wartime absence commenced after accused heard his unit was going forward. He was gone for approximately twelve years and, in spite of his professed intent, he had to be returned by French Police who apprehended him as a deserter. For some considerable time he lived near and frequented military posts, so that he had ample opportunity to surrender. He disregarded the advice of his fianceé and a good friend. He concealed his status by using forged passes and furlough orders. He remained overseas away from his family and community ties, and at least part of the time made his living outside the law. In nearly twelve years time, he never took one affirmative step to return to military control.
There are cases where actions speak so loudly that statements of future intent are hollow and this just happens to *392fall in that category. Of course I cannot say for a moral certainty that some time before death intervened this accused might not return, but I can say that there is nothing in his life’s pattern during the period involved that even remotely suggests that possibility. Permanency only means continuing in the same condition, status, or the like and here I find the facts show an intent to retain his absentee status forever, barring arrest and forced return.
I. would affirm the decision of the board of review.