Opinion of the Court
HomeR FeRguson, Judge:
The accused was charged with two specifications of desertion under Article 85, Uniform Code of Military Justice, 10 USC § 885. He pleaded not guilty to each specification of desertion but guilty to the lesser offense of absence without leave, in violation of Article 86 of the Code, 10 USC § 886. He was found guilty of desertion on the first specification, but only guilty of unauthorized absence on the second. The law officer instructed the court-martial as follows:
"The court is advised that if the condition of the accused's absence without proper authority is much prolonged and there is no satisfactory explanation of it, the court will be justified in inferring from that alone the intent to remain absent permanently. It is a question of fact solely within the province of the court to determine whether the condition of the absence is much prolonged."
This Court, in United States v Cothern, 8 USCMA 158, 23 CMR 382, held a similar instruction to be both erroneous and prejudicial. See also United States v Soccio, 8 USCMA 477, 24 CMR 287. The conviction of desertion therefore cannot stand. 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 affirm the lesser offense of absence without leave and reassess the entire sentence, or it may order a rehearing on the desertion charge.
Chief Judge QuiNN concurs.