(dissenting) :
I dissent.
Charged with one specification of desertion for a period of thirty-four days, the accused pleaded not guilty but guilty to the lesser included offense of unauthorized absence, terminated by apprehension. After accepting the plea of guilty, following an appropriate inquiry into the provi-dency thereof, the military judge, before whom the case was tried, informed the accused that he would not in any way consider that plea with respect to his guilt or innocence of the charged offense of desertion. Thereafter, the prosecution presented the following stipulation of fact (Prosecution Exhibit 1) as its only evidence and rested its case.
“With the consent of the accused the prosecution and defense stipulate that the following facts are true:
“On 10 April 1969 the accused was tried by General Court-Martial at Marine Corps Air Station, Cherry Point, North Carolina. As a result of this court-martial the accused was sentenced to be discharged from the service with a bad conduct discharge, to be reduced to the pay grade E-l, to forfeit all pay and al-lownaces [sic] and to be confined at hard labor for one year. On 8 May 1969 the accused was in the status of confinement at the Marine Corps Air Station, Cherry Point, North Carolina brig serving sentence. On 8 May 1969 while outside the confinement facility on a working party the accused, without authority, departed from the area of the working party and was not seen or heard from again by brig personnel, who had charge over him. On 12 June 1969 the accused was apprehended by agents of the Federal Bureau of Investigation at Knox, Indiana.”
In his defense, the accused testified under oath and categorically denied ever having an intent to remain away from the service permanently. In addition, he related his activities during the period of absence and stated that he resided at his and his wife’s homes. Concern for his mother and his common-law wife, both of whom had money and personal problems, motivated his absence.
The accused was found guilty as charged.
The issue before this Court is whether the above-quoted stipulation should have been received in evidence in view of the provisions of paragraph 1546(1), Manual for Courts-Martial, United States, 1969 (Revised edition), which state in pertinent part that:
“. . . If an accused has pleaded not guilty and the plea still stands, a stipulation which practically amounts to a confession should not be received in evidence.”
The reason for the Manual provision, which has the force of law (United States v Smith, 13 USCMA 105, 32 CMR 105 (1962)), is readily apparent. It would be highly inconsistent to allow an accused who has declared his innocence by means of a not guilty plea to immediately admit his guilt in the form of a stipulation of fact and thereby relieve the Government of its burden to prove his guilt beyond a reasonable doubt.
In the case at bar, the stipulation established three vital facts: (1) The accused was under sentence of a court-martial at the time the unauthorized absence commenced; (2) the absence began while the accused was in a confinement status; and (3) the absence was terminated by apprehension.
It is an accepted axiom of the law that proof of specific intent may be established by circumstantial evidence. From the facts outlined in the stipulation and the reasonable inferences flowing therefrom, the military *75judge could conclude beyond a reasonable doubt that the accused intended to remain away permanently. United States v Ferretti, 1 USCMA 323, 3 CMR 57 (1952); United States v Williams, 9 USCMA 3, 25 CMR 265 (1958). Nothing was left to be proved. Obviously the prosecution thought so for it presented no other evidence and rested its case simply upon the acceptance by the court of the agreed-upon facts. In my opinion, since the facts admitted and the allowable inferences to be drawn therefrom were such as to “practically” amount to a judicial confession of guilty, the stipulation was within the prohibition of the Manual provision and thus inadmissible in evidence.2 Paragraph 1546, Manual, supra.
My brothers maintain to the contrary, however, and find the necessary additional evidence to sustain the military judge’s finding from what they classify as “contradictions and incriminating admissions in the accused’s testimony that significantly detract from his denial and contribute to an inference that he, in fact, intended to remain away permanently.”
The majority find it significant that the accused made no effort to obtain employment while absent, although one of the reasons for his absence was his family’s money problems. He simply borrowed money from friends. After solving his mother’s other problem concerning the lack of someone in the home to look after the smaller children while she was at work, by bringing his wife from her home to his mother’s, they point to the fact that he made no move to return to military control.
In the first place, since evidence that an unauthorized absentee obtained a job in the civilian community is obviously admissible as bearing on the issue of intent to desert (cf. United States v Kirby, 16 USCMA 517, 37 CMR 137 (1967)), I would draw the opposite conclusion from that of my brothers where an accused did not obtain or attempt to obtain employment. Secondly, with reference to his failure to return immediately upon the arrival of his wife at his mother’s home, the time element is clearly in doubt. The length of the absence was only thirty-four days and the accused, on cross-examination, testified that after he had been home for three weeks, he was still trying to “get my wife’s family to let her come and stay with my family and I was still trying to pick up some money when I could.”
As I view the record in this case, there is insufficient evidence, aliunde the stipulation, to sustain the finding of guilty of desertion.
Since I believe that the stipulation was inadmissible in evidence, I would reverse the decision of the United States Navy Court of Military Review and direct that either a rehearing may be ordered or that the Court of Military Review could affirm the lesser offense of absence without leave and reassess the sentence on that basis.
One member of the United States Navy Court of Military Review dissented to that body’s affirmance of the accused’s conviction on this same ground.