UNITED STATES, Appellee v. RICHARD C. WALTER, Private E-2, U. S. Army, Appellant

UNITED STATES, Appellee v RICHARD C. WALTER, Private E-2, U. S. Army, Appellant 8 USCMA 620, 25 CMR 124 No. 10,612 Decided January 24, 1958 Colonel Edward M. O’Connell was on the brief for Appellant, Accused. Lieutenant Colonel John G. Lee and First Lieutenant Jay D. Fischer were on the brief for Appellee, United States. [MAJORITY — HomeR FERGUSON, Judge:] Opinion of the Court HomeR FERGUSON, Judge: The issue presented in this case concerns the correctness of the law officer’s instruction on the question of the accused’s intent to desert. The instruction was as follows: “As to length of absence without authority, it is within the province of the court to determine whether or not the length of time involved, if in the absence of satisfactory explanation, is of sufficient duration from which it can infer an intent to remain away permanently. You must determine whether or not the absence was much prolonged, and if so, whether or not there was a satisfactory explanation for it.” A similar instruction was recently condemned as being prejudicially erroneous in the case of United States v Soccio, 8 USCMA 477, 24 CMR 287. For the reasons stated in that opinion, the accused’s conviction of desertion must be reversed. The record of trial is returned to The Judge Advocate General of the Army for submission to a board of review. In its discretion, the board may approve the lesser offense of absence without leave and reassess the entire sentence or it may order a rehearing on the charge of desertion. Chief Judge Quinn concurs. [DISSENT — LatimeR, Judge] LatimeR, Judge (dissenting): I dissent. My reasons for so doing are expressed in my concurring opinion in United States v Soccio, 8 USCMA 477, 24 CMR 287.