United States v. Rumpler

19 C.M.A. 479, 19 USCMA 479, 42 C.M.R. 81, 1970 CMA LEXIS 860, 1970 WL 6990

Opinions

Opinion of the Court

Darden, Judge:

The appellant entered pleas of guilty to three specifications alleging desertion apd escape from custody, in violation of Articles 85 and 95, Uniform Code of Military Justice, 10 USC §§ 885 and 895. The law officer’s inquiry into the providence of the guilty pleas did not cover the elements of the offenses charged. In mitigation testimony, Rumpler does not admit an intent to desert. We are uncertain whether the law officer intended to probe the question of intent following Rumpler’s testimony when he asked a question that is reported in this authenticated record as follows:

“LO: Since the accused has mentioned going AWOL and has shown his general background, I think this will attribute to those absences. The court I’m sure is aware of the specific intent as required in this case. Are [sic] there any intention on your part on that testimony to interrogate [sic] from the existence of that intent?”

If the words actually spoken were “derogate from” instead of “interrogate from,” the answer would have conceded the intent to desert. But we must take the record as it is authenticated. Under these circumstances the desertion convictions must be set aside. United States v Boyd, 18 USC MA 581, 40 CMR 293 (1969).

The findings of guilty as to desertion under Charge I and its three specifications are set aside. The decision of the Court of Military Review is reversed, and the record of trial is returned to the Judge Advocate General of the Navy. A rehearing may be ordered on the original desertion charges, or the Court of Military Review may affirm the lesser included offenses of unauthorized absence and reassess the sentence.

Judge Ferguson concurs.