United States v. Burgess

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 [164] 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.