United States v. Jordan

Opinion of the Court

A Navy general court-martial found the accused guilty of desertion, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885; for an absence of three months’ duration, terminated by apprehension. The law officer instructed the court that if it found the condition of absence much prolonged, it could “infer from that alone an intent to remain away permanently from his organization.” We have recently condemned a similar instruction in United States v Cothern, 8 USCMA 158, 23 CMR 382, and United States v Burgess, 8 USCMA 163, 23 CMR 387. The present case comes squarely within the rule laid down in those cases and reversal is required. The record 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 desertion charge.