Opinion of the Court
Robert E. Quinn, Chief Judge:
A general court-martial convicted the accused of desertion (Charge I) and disregard of a general order (Charge II), in violation of Articles 85 and 92, Uniform Code of Military Justice, 10 USC §§ 885, 892, respectively, and sentenced him to a dishonorable discharge, total forfeitures, and confinement at hard labor for two years. The convening authority approved the findings of guilty and the sentence, and a divided board of review affirmed his action. We granted review to determine whether the evidence is sufficient to support the desertion charge.
The accused was a section leader in the recoilless platoon of Dog Company, 16th Infantry, which was stationed in Schweinfurt, Germany. He had been in service for nearly six years. For almost a year he served in combat in Korea and had been awarded the Silver Star for gallantry in action. In January or February 1955, however, the Company Commander promoted to sergeant first class a sergeant who was junior to the accused. The accused discussed the matter with the Company Commander. At first he requested a transfer because “it didn’t appear that he would ever get ahead in the job [491]*491that he was m.” As a result of the discussion, however, “an understanding” was reached, and the accused withdrew his request for transfer. He left the interview with a “better attitude” than he had had at the start. His platoon leader, First Lieutenant H. Colbert, testified at the trial that up until the time of the incident which resulted in the charges, the accused had been doing an “excellent job of soldiering.” Other members of the accused’s company gave similar testimony.
On Friday evening, April 1, 1955, the accused acted as battalion charge of quarters. Normally the charge of quarters has off the next morning. The accused was relieved from duty in regular course at 7:30 on Saturday morning. According to a pretrial statement by him, it appears that shortly thereafter he left the company area by way of the pass gate. The Company Commander testified that the accused had a “special privileged NCO pass, 16th Infantry NCO pass” which had a geographical limit of fifty miles from the station. After visiting two gasthauses and drinking several bottles of beer, the accused returned to the company area. He borrowed $30.00 and then returned to town. At about 1:00 p.m. he hired a taxi driven by Herr Koebbel. Here the chronology of events breaks down. At about 3:00 p.m. the accused was joined in the taxi by Private First Class J. B. Williams. Williams had a drink from a bottle of cognac purchased by the accused. Approximately an hour later, Williams left. In his opinion, the accused was “just about drunk.”
When Williams left, the accused directed Herr Koebbel to drive to Hessel-bach. On reaching that town, he ordered Koebbel to “Drive further on.” They continued to Ballingshausen. Again the accused ordered Koebbel to “go on.” They drove to Merkershau-sen. Once more the accused wanted to go on, but Herr Koebbel refused to go further because the accused “didn’t state a town or . . . where he wanted to go.” Koebbel thought that the accused was “not quite sober.” The accused left the taxi. It was then about 5:00 p.m. Koebbel tried to get the accused to return to Schweinfurt with him, but the accused shrugged him off. He accosted the drivers of other vehicles and asked them to take him to Koenigshofen. One of the persons thus stopped was A. Heppt. Herr Heppt believed that the accused was “drunk,” but that he knew what he wanted.
Eventually the accused turned up in Koenigshofen. A local civilian policeman, Werner Mueller, had been notified that the .accused was apparently headed for the East zone. When he saw the accused attempting to obtain a taxi, he cautioned the driver against picking up the accused. Riding his bicycle, Mueller more or less followed the ae-cussed as he proceeded on foot from Koenigshofen to Eyershausen. In Mueller’s opinion, the accused walked “easily” but appeared to him to be a “drunkard.”
At the entrance to Eyershausen the accused was accosted by Guenther Goer-lich and Ruhl, members of the civilian border police. It is appropriate to note here that Eyershausen is three kilometers from the border, but within fifty miles of the accused’s station. A Headquarters V Corps order, which provides the basis for Charge II, prohibits an approach to the border nearer than five kilometers, except under special conditions. The border police asked the accused where he wanted to go, and he replied “I am going to my girl.” They told the accused to get into their car, and they would take him where he wanted to go until the military police arrived. Apparently they went to a gasthaus. There the accused informed them that his division was soon to be returned to the United States where he would be treated “like a dog.” He also told them that if they had not been there, he would have gone across the border. Just then the military police arrived. Corporal Hickey, a military policeman, advised,'the accused that he was under arrest for attempted desertion. He also informed the accused of his rights under'Article 31. Corporal Hickey testified;,’that the accused was intoxicated, but ¡not drunk; his actions were slow, but Ms speech was coherent. The accused was,.'asked why he had gone to Eyershausen^ He replied that he was [492]*492“trying to go to the East Zone.” While returning to Schweinfurt in the military police vehicle, he asked Corporal Hickey whether he would be given a general court-martial for “trying to go to the East Zone.”
To sustain the charge of desertion against the accused, the evidence must show beyond a reasonable doubt that he went or remained absent without proper authority from his “unit, organization, or place of duty with intent to remain away therefrom permanently.” Article 85(a) (1), Uniform Code of Military Justice, 10 USC § 885. The evidence as to the accused’s absence status is unclear. Part of this deficiency is due to an apparent assumption on the part of trial personnel that the court members were thoroughly familiar with the terms of a noncommissioned officer’s pass and that, therefore, no particularization was needed. Under certain circumstances, an appellate court will rec ognize that matters of common knowledge to military personnel at the scene were considered by the court-martial. United States v Weiman, 3 USCMA 216, 218, 11 CMR 216. Whether the present situation would ordinarily justify such appellate recognition need not be decided. The trial proceeded upon the assumption that the accused possessed a lawful pass. We are satisfied to accept that assumption in deciding the case. See United States v Cambridge, 3 USCMA 377, 12 CMR 133.
The pass in question was described simply as a “special privileged . . . 16th Infantry NCO pass.” The only evidence of its terms and provisions was that it was limited to a geographical area of fifty miles from the accused’s station. Army regulations provide that passes are generally valid from “recall to reveille the next following duty day.” AR 630-20, paragraph 2. Whether the pass authorized only an overnight absence or whether it extended to Sunday as a nonduty day does -not appear. This important fact should’; have been made a matter of record. Our view of the ease, however, makes it unnecessary to determine the precise time limits of the pass. It is sufficient to note that at the time the accuse^ was finally taken into custody by the military police he was still within the geographic and apparent time limits of his pass.
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Opinion of the Court
Robert E. Quinn, Chief Judge:
A general court-martial convicted the accused of desertion (Charge I) and disregard of a general order (Charge II), in violation of Articles 85 and 92, Uniform Code of Military Justice, 10 USC §§ 885, 892, respectively, and sentenced him to a dishonorable discharge, total forfeitures, and confinement at hard labor for two years. The convening authority approved the findings of guilty and the sentence, and a divided board of review affirmed his action. We granted review to determine whether the evidence is sufficient to support the desertion charge.
The accused was a section leader in the recoilless platoon of Dog Company, 16th Infantry, which was stationed in Schweinfurt, Germany. He had been in service for nearly six years. For almost a year he served in combat in Korea and had been awarded the Silver Star for gallantry in action. In January or February 1955, however, the Company Commander promoted to sergeant first class a sergeant who was junior to the accused. The accused discussed the matter with the Company Commander. At first he requested a transfer because “it didn’t appear that he would ever get ahead in the job [491]*491that he was m.” As a result of the discussion, however, “an understanding” was reached, and the accused withdrew his request for transfer. He left the interview with a “better attitude” than he had had at the start. His platoon leader, First Lieutenant H. Colbert, testified at the trial that up until the time of the incident which resulted in the charges, the accused had been doing an “excellent job of soldiering.” Other members of the accused’s company gave similar testimony.
On Friday evening, April 1, 1955, the accused acted as battalion charge of quarters. Normally the charge of quarters has off the next morning. The accused was relieved from duty in regular course at 7:30 on Saturday morning. According to a pretrial statement by him, it appears that shortly thereafter he left the company area by way of the pass gate. The Company Commander testified that the accused had a “special privileged NCO pass, 16th Infantry NCO pass” which had a geographical limit of fifty miles from the station. After visiting two gasthauses and drinking several bottles of beer, the accused returned to the company area. He borrowed $30.00 and then returned to town. At about 1:00 p.m. he hired a taxi driven by Herr Koebbel. Here the chronology of events breaks down. At about 3:00 p.m. the accused was joined in the taxi by Private First Class J. B. Williams. Williams had a drink from a bottle of cognac purchased by the accused. Approximately an hour later, Williams left. In his opinion, the accused was “just about drunk.”
When Williams left, the accused directed Herr Koebbel to drive to Hessel-bach. On reaching that town, he ordered Koebbel to “Drive further on.” They continued to Ballingshausen. Again the accused ordered Koebbel to “go on.” They drove to Merkershau-sen. Once more the accused wanted to go on, but Herr Koebbel refused to go further because the accused “didn’t state a town or . . . where he wanted to go.” Koebbel thought that the accused was “not quite sober.” The accused left the taxi. It was then about 5:00 p.m. Koebbel tried to get the accused to return to Schweinfurt with him, but the accused shrugged him off. He accosted the drivers of other vehicles and asked them to take him to Koenigshofen. One of the persons thus stopped was A. Heppt. Herr Heppt believed that the accused was “drunk,” but that he knew what he wanted.
Eventually the accused turned up in Koenigshofen. A local civilian policeman, Werner Mueller, had been notified that the .accused was apparently headed for the East zone. When he saw the accused attempting to obtain a taxi, he cautioned the driver against picking up the accused. Riding his bicycle, Mueller more or less followed the ae-cussed as he proceeded on foot from Koenigshofen to Eyershausen. In Mueller’s opinion, the accused walked “easily” but appeared to him to be a “drunkard.”
At the entrance to Eyershausen the accused was accosted by Guenther Goer-lich and Ruhl, members of the civilian border police. It is appropriate to note here that Eyershausen is three kilometers from the border, but within fifty miles of the accused’s station. A Headquarters V Corps order, which provides the basis for Charge II, prohibits an approach to the border nearer than five kilometers, except under special conditions. The border police asked the accused where he wanted to go, and he replied “I am going to my girl.” They told the accused to get into their car, and they would take him where he wanted to go until the military police arrived. Apparently they went to a gasthaus. There the accused informed them that his division was soon to be returned to the United States where he would be treated “like a dog.” He also told them that if they had not been there, he would have gone across the border. Just then the military police arrived. Corporal Hickey, a military policeman, advised,'the accused that he was under arrest for attempted desertion. He also informed the accused of his rights under'Article 31. Corporal Hickey testified;,’that the accused was intoxicated, but ¡not drunk; his actions were slow, but Ms speech was coherent. The accused was,.'asked why he had gone to Eyershausen^ He replied that he was [492]*492“trying to go to the East Zone.” While returning to Schweinfurt in the military police vehicle, he asked Corporal Hickey whether he would be given a general court-martial for “trying to go to the East Zone.”
To sustain the charge of desertion against the accused, the evidence must show beyond a reasonable doubt that he went or remained absent without proper authority from his “unit, organization, or place of duty with intent to remain away therefrom permanently.” Article 85(a) (1), Uniform Code of Military Justice, 10 USC § 885. The evidence as to the accused’s absence status is unclear. Part of this deficiency is due to an apparent assumption on the part of trial personnel that the court members were thoroughly familiar with the terms of a noncommissioned officer’s pass and that, therefore, no particularization was needed. Under certain circumstances, an appellate court will rec ognize that matters of common knowledge to military personnel at the scene were considered by the court-martial. United States v Weiman, 3 USCMA 216, 218, 11 CMR 216. Whether the present situation would ordinarily justify such appellate recognition need not be decided. The trial proceeded upon the assumption that the accused possessed a lawful pass. We are satisfied to accept that assumption in deciding the case. See United States v Cambridge, 3 USCMA 377, 12 CMR 133.
The pass in question was described simply as a “special privileged . . . 16th Infantry NCO pass.” The only evidence of its terms and provisions was that it was limited to a geographical area of fifty miles from the accused’s station. Army regulations provide that passes are generally valid from “recall to reveille the next following duty day.” AR 630-20, paragraph 2. Whether the pass authorized only an overnight absence or whether it extended to Sunday as a nonduty day does -not appear. This important fact should’; have been made a matter of record. Our view of the ease, however, makes it unnecessary to determine the precise time limits of the pass. It is sufficient to note that at the time the accuse^ was finally taken into custody by the military police he was still within the geographic and apparent time limits of his pass. Consequently, unless the accused’s pass was somehow voided by his actions, he was not absent without authority, and he cannot be convicted of desertion.
At the trial the law officer instructed the court members as follows:
“. . . if you are not convinced beyond a reasonable doubt by legal and competent evidence that the ac-eussed’s absence was unauthorized but you are satisfied by legal and competent evidence beyond a reasonable doubt that the accused having once been absent with authority and with a pass exceeded the limits of his pass, you may then nevertheless consider the question, of whether the accused was absent without leave. Thus, subject to the above- instructions, if you are further satisfied by legal and competent evidence beyond a reasonable doubt, that the accused did violate the limits of his pass and that this violation was so palpable as to constitute a complete abandonment of authority granted to him by this pass, you may then consider this question on the elements of absence without leave in the question of desertion and also on the lesser included offense of absence without leave.”
This instruction seems to be founded on a provision in the Manual for Courts-Martial, United States, 1951. Paragraph 164a provides that:
"... a member of the armed forces absent on a short pass or liberty from his organization who is found on board a ship at sea, without authority, bound for a distant port, may be regarded as having abandoned any authority he might have for his absence and to be absent without proper authority, although he may not have gone beyond the area fixed in the pass and the pass may not have expired.”
The crucial inquiry, therefore, is whether there can legally be an abandonment of a pass so as to transform an authorized absence into an unauthorized one.
[493]*493A pass has been Referred to as a privilege and not an absolute right. AR 630-20, June 24, 1955, paragraph 1. From this premise, it is contended that the privilege, like other privileges, such as that against self-incrimination, can be waived or abandoned. The attempted analogy, however, disregards the basic distinction between administrative determinations and criminal law enforcement. Administrative considerations cannot themselves satisfy the requirements for enforcement of the military criminal law. See United States v Wise, 6 USCMA 472, 20 CMR 188. To subject a person to the sanctions of the Uniform Code, it must be shown that his conduct actually violates its provisions.
A pass authorizes a person to remain away from his place of duty or from his organization. AR 630-20, paragraph 2. We may assume that the authority who granted the pass can revoke or recall it at will. But what actual power does the possessor have over his pass? As far as we can determine, he has none. He cannot change it in any way. In short, his status as a person on pass is as personally unalterable as that of any military assignment given to him. If he is ordered to perform a particular duty at a particular place, he cannot by his own act abandon the assigned place and the assigned duty. It would seem to follow that he also lacks the power to affect his military status, when officially he has no duty and no assigned place. It is a mistake, therefore, to say that because a pass is labeled a “privilege” it can be abandoned by the possessor. As a matter of fact, service in the military, especially during a period of grave emergency, is not only a duty, but a high privilege. Yet, such service cannot be casually terminated. We have long held that even the expiration of the term of enlistment does not confer upon a person the right to cast aside his military duty on his own initiative. United States v Downs, 3 USCMA 90, 11 CMR 90. We conclude that a pass cannot be “abandoned” so as to convert an authorized absence into an unauthorized one, within the meaning of Article 85 of the Uniform Code. Consequently, the evidence does not support the conviction of desertion.
Left for consideration is whether the evidence can support a finding of guilty of the lesser offense of attempted desertion. Under Article 80, Uniform Code, 10 USC § 880, an act done with a specific intention to commit an offense which amounts to more than “mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense.” The act need not be the ultimate step in the consummation of the crime. Instead, it is sufficient if the act is one which, in the ordinary and likely course of events, would, if not interrupted by extraneous causes, result in the commission of the offense itself. State v Schwarzbach, 84 NJL 268, 86 A 423; People v Gibson, 94 Cal App2d 468, 210 P2d 747.
The overt act must be viewed in the light of the character of the interruption and the nearness of the consummation of the offense intended. People v Volpe, 122 NYS2d 342 (Co Ct). Of course, when interrupted, the accused was not yet in an unauthorized leave status. However, to be guilty of an attempt, the accused did not have to be actually absent without leave. Had he been so absent, the evidence would be sufficient to sustain a finding of guilty of the offense of desertion. The next step short of an unauthorized absence was to place himself in such a position that, if uninterrupted, the natural progression of events would bring about an unauthorized absence. To hold otherwise would make it impossible for anyone to commit the offense of attempted desertion, notwithstanding that Congress clearly contemplated the existence of such an offense. See Article 85(c). Consideration must also be given then to the nature of the intended offense. People v Weleck, 10 NJ 355, 91 A2d 751.
The accused’s expressed dissatisfaction with his prospective return to the United States, his entrance into a forbidden zone, his declared intention of going to a territory under foreign control, his physical nearness to that destination, and, finally, the short time of [494]*494authorized absence could provide the basis for a reasonable inference that, except for his detention by the civilian border police, the accused would have entered the East zone intending to remain away permanently and would not have returned to his organization within the time prescribed by his pass. Thus, the course of events shows a probability that the offense charged might have been committed, but for outside interference. As the Supreme Court of Connecticut remarked in State v Mazzadra, 141 Conn 731, 109 A2d 873, 875, it is sufficient if the acts constitute “at least the start of a line of conduct which would lead naturally to the commission of a crime which appears to the actor at least to be possible of commission by the means adopted.” Hence, notwithstanding that the accused still had a locus penitentia when interrupted, United States v Coplon, 185 F2d 629, 633 (CA2d Cir) (1950), a court-martial could find that he had passed beyond the stage of preparation and reached a point which in the normal course of events would result in the commission of the offense charged. The evidence could thus support a finding of guilty of attempted desertion.
Reasonable persons, however, may differ over the “proximity and nearness of the approach” of the overt acts to a consummated offense. People v Rizzo, 246 NY 334, 337, 158 NE 888; United States v Choat, 7 USCMA 187, 21 CMR 313. Here the court-martial was instructed on attempted desertion. But, in light of the erroneous instructions it received in regard to the abandonment of a pass, we believe that it did not consider this question adequately. In our opinion, the accused is entitled to have the question decided by the court-martial free from the influence of incorrect rules of law. State v Mazzadra, supra.
We turn to the disposition of the case. First, we set aside the findings of guilty of desertion and the sentence. When setting aside one of several findings of guilty and the sentence, we have on occasion returned the record of trial to The Judge Advocate General for submission to a board of review for further action consistent with our opinion. Under that form of direction, the board of review could in its discretion either dismiss the entire charge which we set aside and reassess the sentence on the basis of the approved charge, or order a rehearing as to the lesser offense supported by the evidence and a redetermination of the sentence by the court-martial. United States v Berry, 6 USCMA 609, 20 CMR 325; United States v Field, 5 USCMA 379, 18 CMR 3. We have, however, emphasized that in certain instances the interests of justice require a redetermination of the sentence by the court-martial. United States v Voorhees, 4 USCMA 509, 16 CMR 83. Although a violation of a general order is a comparatively serious offense, we think it was so overshadowed by the desertion charge that there is a fair risk the original sentence was adjudged because of the latter. Consequently, we return the case to the initial reviewing authority. In his discretion he may dismiss the charge of desertion and its lesser included offense of attempted desertion and order a rehearing on the sentence on the basis of Charge II, or order a rehearing on attempted desertion and a redetermination of the entire sentence by the court-martial. United States v Field, supra.
Judge Ferguson concurs.