United States v. Stephenson

8 C.M.A. 657, 8 USCMA 657, 25 C.M.R. 161, 1958 CMA LEXIS 715, 1958 WL 3103

Opinion

Opinion of the Court

HomeR Ferguson, Judge:

This is another case which comes within our holding in United States v Soccio, 8 USCMA 477, 24 CMR 287. Here, the law officer erred when he instructed the court-martial as follows:

“. . . you are further advised that if the absence without proper authority is much prolonged and there is no satisfactory explanation of it the court may be justified in inferring an intent to remain absent permanently.”

Accordingly, the finding of guilt of the offense of desertion must be set aside. The record of trial is returned to The Judge Advocate General of the Navy for reference to a board of review. The board, in its discretion, may approve the lesser offense of absence without leave and reassess the sentence or it may order a rehearing on the principal charge.

Chief Judge Quinn concurs. Judge Latimer dissents.