(concurring in the result) :
I concur in the result.
The majority opinion strains far too much to reach its result. Exemplary of this is the remarkable hypothetical case of an accused who could not do enough to insure his conviction on a desertion charge. When that imaginary man appears in a record on appeal, the world of fantasy will replace reality. Indeed, as one of Shakespeare’s characters put it, “If this were played upon a stage now, I could condemn it as an improbable fiction.”
Unfortunately, rather than the stage, we deal with the law, and the concepts advanced by the principal opinion will add to, rather than detract from, the difficulties of those persons who are charged with the responsibility of administering military justice. Without question, the facts which are used to support the principle that absence without leave is a reasonable alternative to the principal offense of desertion are indeed weak rods.
The first evidentiary item, a service record entry showing termination of absence by apprehension, is dealt with in a manner contrary to our holding in United States v Simone, 6 USCMA 146, *66819 CMR 272. Unless we retreat from the position we took in that case, an official record showing apprehension proves that the return was involuntary. Certainly, United States v Nickaboine, 3 USCMA 152, 11 CMR 152, cited by the majority, does not modify that rule. But, even if the manner of return be considered as unknown, the uncertainty would not cast light on the intent of the accused.
The second fact is an admission by the accused to the effect that he was an absentee from the Navy. The Court finds from that fact some evidence of an intent to return because, had the accused intended to remain away permanently, he would have characterized himself as a deserter. That is faulty reasoning, for the word absentee is found in a service record entry and the admission was made at the time the accused was required to disclose his identity to a civil police officer. As I understand the word, it means one who is absent, and a deserter is in that class. Therefore, even if the word was used by the accused and not the recording official, I am unable to credit him with such a fine sense of discrimination in the use of terms that he knowingly divided the class. At best, I simply find from the entry that when apprehended the accused disclosed his status and not the intent with which he departed or remained away from his station.
With those few observations, I pass on to my reasons for concurring. In United States v McCrary, 1 USCMA 1, 1 CMR 1, I expressed my views in this field in the following language:
“The foregoing quotation merely announces common sensé inferences any rational person would draw and in drawing them the time and space factors are influential. The longer the absence and the greater the distance from the unit the more reasonable the inference. The shorter the time and distance the less the inference is bottomed on reason. It is almost impossible to fix with certainty the minimum and maximum limits of these factors, but somewhere between the two is an area in which reasonable minds might differ. That area is one in which the members of the court-martial should be permitted to act without interference by this Court. Accordingly, if the facts in this case (and we believe they do) place the question of intent in the area where members of the court-martial or board of review could reasonably come to a different conclusion, then it becomes a question solely for their determination.”
There is a remote possibility that all reasonable men might not from the facts in this record draw the inference that accused intended to remain away permanently. If so, then it can be argued that the law officer erred. However, it seems to me that under the doctrine of United States v Cothern, 8 USCMA 158, 23 CMR 382, and allied cases, and United States v Swain, 8 USCMA 387, 24 CMR 197, any discussion of that concept is purely academic. To say the least, the principle of inferring an intent to remain away permanently from prolonged absence superimposed upon apprehension or any other fact has been rendered so doubtful that reliance thereon is no longer justified. For that reason and to eliminate any further doubt and confusion about that question, the only sensible approach left to take is that absence without leave must be considered as an included offense to a charge of desertion in all instances unless the accused judicially confesses to an intent to remain away permanently. Being bound by the law as it is, I now take that position. However, if, after a plea of not guilty, a law officer should be confronted with a case in real life, in which the evidence is as strong as my brothers suggest in their suppositions — a contingency as remote as finding the fountain of youth —he might take a chance and limit findings to desertion.
Knowing that I express the views of one Judge only and that the principle I expound is not the law of the Court, I nevertheless believe that law officers will escape reversals if, in all future cases, they standardize their instructions by including absence without leave in all desertion charges.