United States v. Hyatt

8 C.M.A. 67, 8 USCMA 67, 23 C.M.R. 291, 1957 CMA LEXIS 466, 1957 WL 4482

Opinions

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

A general court-martial convicted the accused of desertion with the intent to shirk important service, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885, and sentenced him to a dishonorable discharge, total forfeitures, and confinement at hard labor for three years. Intermediate appellate authorities affirmed. We granted review to consider the correctness of the law officer’s instruction that “as a matter of law, duty beyond the continental limits of the United States is important service.”

The Manual for Courts-Martial, United States, 1951, points out that important service “may in-elude such service as . . . beyond the continental limits of the United States.” Paragraph 164a (2). (Emphasis supplied.) The Manual’s statement suggests, and, in fact, we have held, that all service overseas is not important service; there must be “something more than the ordinary everyday service of every member of the armed forces stationed overseas.” United States v Boone, 1 USCMA 381, 384, 3 CMR 115. Whether the “something more” is present depends entirely upon the circumstances of the particular case. United States v Boone, supra. Fundamentally, therefore, the question is one of fact to be decided by the court-martial, not by the law officer; Thus, in United States v Hemp, 1 USCMA 280, 3 CMR 14, for example, we held that assignment of the accused to an overseas post merely “brings into prominence” a circumstance from which “a court may find” an intent to shirk important service. (Emphasis supplied.) See also United States v Stabler, 4 USCMA 125, 15 CMR 125. It was, therefore, prejudicial error for the law officer to take the question of important service from the court-martial and decide it as a matter of law.

Our holding, of course, does not preclude the law officer from ruling on a motion for a finding of not guilty of the intent alleged on the ground that important service has not been established as a matter of law. Article 51, Uniform Code of Military Justice, 10 USC § 851; Manual for Courts-Martial, supra, paragraph 71a. Nor does it preclude the accused from asserting on appeal that the evidence does not support the court-martial’s finding of important service. United States v Shull, 1 USCMA 177, 2 CMR 83; United States v Peterson, 1 USCMA 317, 3 CMR 51.

The decision of the board of review is reversed. The record of trial is re turned to The Judge Advocate General of the Army for resubmission to a board of review. In its discretion the board of review can affirm findings of guilty of the lesser offense of an unauthorized absence, in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886, and reassess the sentence on the basis of its findings, or it can order a rehearing of the charge.

Judge FERGUSON concurs.