(dissenting):
I dissent.
If there is any improvidence in this plea of guilty, it must be predicated on a belief that defense counsel was uninformed on the rudimentary principles of criminal law. He was a certified lawyer, the offense charged was not complicated, and I have every reason to believe he knew the Government had the burden of proving the element of intent. Aside from his professional standing, as I interpret the record, he well knew that the evidence for the Government would overwhelmingly establish a base for the inference of an intent to remain away permanently. The specification so alleged and in an out-of-court conference, the law officer expressly announced that the plea admitted that element of the offense. Moreover, the accused, in his sworn testimony from the witness stand, admitted he went absent without leave because he did not want to remain a member of the Army and, at the time of trial, he had not changed his mind. His military record is in keeping with his admission, for it disclosed that he enlisted on March 6, 1958. His first absence without leave commenced on July 4, 1958, and terminated on July 17, 1958. He left his unit without permission on August 6, 1958, and was returned to duty on August 9, 1958. He next absented himself without authority on September 20, 1958, and was not returned to the service until November 15, 1958. The absence which commenced the period of this desertion charge occurred on June 11, 1959, and! accused was involuntarily returned to. military control on September 17, 1959. His conduct while in an absentee status pointed unerringly to an abandonment of the service, and there is not one-scintilla of evidence to the contrary. Either accused intended to return or he intended to remain away and, faced' with overwhelming evidence against his client, trial defense counsel was trying to explain that in his pretrial efforts he had been unable to uncover any testimony which would neutralize the effect of the evidence. Merely because the record indicates he did not phrase his thoughts in a careful and precise manner does not prove he misunderstood the law.
While my associates say there is some doubt about the issue, I am of the opinion that if they would consider the record by its four corners, and particularly the questions and answers in the out-of-court hearing, accused’s, sworn testimony on the witness stand, the law officer’s comment on the element of intent and the entire courtroom-drama, the lack of certainty would disappear. And certainly I would not cast some shadow on the adequacy of representation without a better showing than I find in this record.
I would affirm the decision of the board of review.