Opinion of the Court
ROBERT E. Quinn, Chief Judge:
This case is before us on petition of the accused to review the record of his conviction for the offense of desertion in violation of Article 85, Uniform Code of Military Justice, 50 USC § 679. The accused was tried and convicted by general court-martial at Fort Custer, Michigan, on November 6, 1951. The accused was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances and to confinement at hard labor for two years, two previous convictions being considered. The convening authority on December 13, 1951, approved the findings and sentence. On January 22, 1952, a board of review in the office of The Judge Advocate General, United States Army, affirmed.
The specification of the charge in this case alleged that the accused, while serving at Fort Custer, Michigan, did, on or about August 8, 1951, without proper authority and with intent to remain away therefrom permanently, absent himself from his organization, and remained absent until his apprehension on or about September 12, 1951. The accused, after his arraignment, plead guilty to the lesser included offense of absence without proper authority in violation of Article 86, Uniform Code of Military Justice, 50 USC § 680, and not guilty to the principal offense of desertion. The law officer explained the meaning and effect of accused's plea of guilty to the lesser included offense in accordance with • Paragraphs 53h and 70, Manual for Courts-Martial, United States, 1951. The accused persisted in his plea.
The sole evidence adduced by the prosecution consisted of two duly authenticated extract copies of the morning reports of Battery A, 79th AntiAircraft Artillery Gun Battalion (120 mm.) stationed at Fort Custer, Michigan, which established the inception of accused's absence without leave from August 8, J951, and the termination thereof on September 12, 1951, a period of thirty-five days. In addition, an oral .stipulation agreed to by the prosecution and defense, with the consent of accused, was admitted in evidence to establish the apprehension of the accused by a civilian policeman on September 12, 1951, in the city of Detroit, Michigan.
The accused, being advised of his rights, elected to testify in his own behalf. The facts which follow were elicited on his direct examination. The accused testified that his wife's illness was the reason for his absence; that he had left his organization without authority because he had been denied a three-day pass, after making requests to his First Sergeant and officers of the Battery; that, after he had returned to his home, his mother-in-law, who lived in the same house, suffered a stroke and became a bed patient; that during his absence he remained at his home in Detroit helping his wife and mother-in-law by assisting with house work; that he planned to return to his organization in thirty-five days; that while he was absent without leave he had not taken a job and had had no income during this period; that he had left all of his possessions at his post and had worn his uniform approximately three-fourths of the time during this period of absence.
On cross-examination the accused testified that he requested a three-day pass on August 7 and could not understand why this request was not granted. The accused admitted his apprehension at the end of this absence without leave; that he had learned of his wife's illness through letters; that he had not received any word from the Red Cross requesting that he be given leave to return home; that, one week after he returned home, his wife was able to leave her sickbed; that his mother-in-law did not become ill until the week following the time his wife was ambulatory. The accused also testified that his wife's sister lived in the same home.
Our examination of the trial record discloses what we consider to be a very pertinent portion of the accused's testimony on cross-examination — trial counsel asked and the accused answered the following questions:
Question: "Just when did you intend to come back?"
ANSWER: "I intended to come back quite a few times, sir, but I couldn't make it."
Question : "Had you set a definite date when you would come back?"
ANSWER: "No, sir."
Question: "Had you said, 'Well, when conditions reach a certain point, then I will go back'?"
ANSWER: "Yes, sir."
Question : "What were the conditions?"
Answer: "Well, when everything was running smoothly, sir."
Question : "Had things been running smoothly prior to the time you came home?"
Answer: "Yes, sir."
Question : "Had not your mother-in-law been ill before that time?"
ANSWER: "Quite a few times, sir; but when she was ill before, I wasn't in Service."
It is on the basis of the entire trial record that we are asked to determine the issue presented to us on appeal. As we review the trial record in the instant case we come to the indisputable conclusion that neither counsel for the Government nor the defense demonstrated the degree of professional responsibility and diligence expected of them and imposed upon them by the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1951. Our examination of the trial record in this case indicates that neither counsel for the prosecution nor the defense fully exhausted the means at his disposal to produce evidence available and competent to corroborate or to deny the contention of accused.
The Uniform Code of Military Justice became effective May 31, 1951, after long and careful study by the Congress. Sufficient time has elapsed for all military officers engaged in the administration of the Code to become familiar with the spirit and intent of the Code. The Code provides many safeguards for the use of defense counsel to fully protect the rights of the accused. Likewise, adequate provision is made for trial counsel fairly and. adequately to present the prosecution case in the name of the United States. The Manual for Courts-Martial, United States, 1951, further implements the safeguards that are provided in the Code. A military officer acting as trial, or defense, counsel has a distinct and definite responsibility to see to it that the rights of the accused are fully protected at all times and to present to the trial court all pertinent evidence that is readily available. With this admonition, we proceed to consider the merits of the issue in the case at bar.
The duly authenticated extract copies of the morning reports of the accused's organization, together with his plea and admissions as a witness, clearly established the lesser included offense of absence without leave in violation of Article 86, Uniform Code of Military Justice, supra. Consequently, the only question is whether there was sufficient evidence to support the finding of an intent to remain away permanently. This precise issue has been considered by us in United States v. Peterson (No. 199), 3 CMR 51, decided April 17, 1952; United States v. Ferretti (No. 213), 3 CMR 57, decided April 18, 1952. In these cases we carefully laid down the principles that will guide us in our determination of cases like the one before us.
Appellate defense counsel urges that our decision in United States v. Peterson, supra, is controlling in the instant case. We do not agree. It is our opinion that the case at bar is distinguishable from Peterson on the following grounds: (a) the accused in this case was apprehended; (b) the statements of the accused on the witness stand were inconsistent, damaging to him, and supplied omissions that were not produced in the Government case.
We briefly recount several patent inconsistencies that occurred in accused's direct and cross-examination. The accused in his direct examination stated he intended to return to military control on the thirty-fifth day of his absence. It is significant that he was apprehended on the thirty-sixth day of his absence in Detroit, Michigan. In this connection the accused, upon cross-examination, testified in substance that he had no definite date in mind as to when he would return to military control. On direct examination, accused stated he had returned home because of his wife's illness. It is noted that accused admitted that one week after his return his wife was well enough to leave her sickbed. His mother-in-law and sister-in-law were both at home during this period. One week after his wife was out of bed, his mother-in-law became ill and was confined to bed which fact, in accused's opinion, required him to remain at home until apprehended.
We believe that the evidence of this case, including that offered by accused, was adequate to warrant the members of the court-martial to draw the inference that accused intended to remain away permanently. There is further support for this conclusion in accused's admission on cross-examination that he had not formed a. definite date in his own mind as to when he would return to military control. In this connection, it appears from accused's testimony on cross-examination that he said to' himself: "When conditions were such that everything is running smoothly, I will return." This expressed intent on the part of the accused to return to military control, conditioned .on the occurrence of a subsequent fact, which might, or might not, have materialized, justified the rejection by the members of the court-martial of the accused's contention that he did not intend to remain permanently absent from the military service.
We conclude that there was sufficient evidence in the trial record to support the finding that the accused intended to remain absent from his organization permanently, and we cannot substitute our judgment for that of the triers of fact in this case. United States v. McCrary (No. 4), 1 CMR 1, decided November 8, 1951.
Accordingly, the decision of the board of review is affirmed.
Judge Latimer concurs.