United States v. Burgess

8 C.M.A. 163, 8 USCMA 163, 23 C.M.R. 387, 1957 CMA LEXIS 441, 1957 WL 4502

• Court: United States Court of Military Appeals
• Decided: July 19, 1957
• Docket: No. 10,001
• Status: Published

Opinions

Opinion of the Court

Homer Ferguson, Judge:

During the course of his instructions to the court-martial, relevant to a charge of desertion, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885, the law officer in this case charged the court as follows:

“. . . You are instructed that if a condition of absence without authority is muck 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.” [Emphasis supplied.]

We discussed this instruction at length in the case of United States v Cothern, 8 USCMA 158, 23 CMR 382, and decided for reasbns stated therein that it was prejudicial error to so instruct a court-martial. Intent to remain away permanently is the key question in the instant case. The disposition of this case is governed by the law as stated in United States v Cothern, supra. Accordingly, the findings of guilty are set aside, and 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 oifense of absence without leave and reassess the entire sentence, or it may order a rehearing on the desertion charge.

Chief Judge Quinn concurs.