to the contrary. Additionally, although the evidence of apprehension related above may not be sufficient to establish that fact beyond a reasonable doubt, in his pretrial statement, the accused freely admitted that his absence was terminated through apprehension by the Philippine authorities. No more is required to support findings of guilty of the offense charged. ACM 8897, Hastings (1954) 16 CMR 714.

§ 61.1. Generally.

§ 61. Intent to Desert

The accused was found guilty of desertion under a specification alleging an absence without authority from 25 September 1953 until apprehension on 23 February 1954. The record showed that the accused pleaded guilty to the lesser offense of absence without leave and following this plea the only evidence introduced by the prosecution was a service record entry to the effect that the accused, a Camp Pendleton, California, marine, was apprehended some distance from his duty station in Nebraska and that at that time he was an unauthorized absentee. The duration of the absence was not stated therein. Held: The above evidence, standing alone, falls short of establishing facts from which it may reasonably be inferred that the accused intended to remain away from his unit permanently. To hold otherwise would in effect authorize conviction for desertion in almost any case of unauthorized absence, regardless of duration, in which there is apprehension. Apprehension is some proof of intent as are the circumstances of apprehension including the place of apprehension, but mere apprehension of a Camp Pendleton absentee in Nebraska is not as a matter of law sufficient proof of intent permanently to abandon the service. (See MCM, 1951, par 164a (3).) NCM 338, Salway (1954) 16 CMR 424.

Joining Communist guerilla organization in Philippine Islands as raising inference of intent to desert, see ACM 8897, Hastings, supra § 57.4.

Apprehension of accused by members of Philippine Army pursuant to request of American authorities as raising an inference of intent to desert, see ACM 8897, Hastings, supra § 57.4.

§ 61.3. Period of absence as raising inference of.

The accused was convicted of desertion. The prosecution evidence established an unauthorized absence of 398 days from a unit based in Rhode Island and terminated by surrender in Washington, D. C. The accused testified that his wife was subject to epileptic attacks and he absented himself to find someone to take care of his wife and to provide her with money for support. During part of the time he was absent his wife was cared for by her sister and at the time of trial his wife was being cared for by her mother. Held: The prolonged absence was sufficient, if the accused's explanation was not satisfactory, to justify the court in inferring that he intended to absent himself permanently from his unit. (Citing U. S. v. Ferretti (No. 213), 1 USCMA 323, 3 CMR 57; NCM 122, Smith,

3 CMR 469; MCM, 1951, par 164a.) The fact that the accused voluntarily surrendered himself at a place distant from his unit after a prolonged absence weighs in his favor but does not compel a finding that he did not intend to desert. (Citing U. S. v. McCrary (No. 4), 1 USCMA 1, 1 CMR 1.) The fact that the accused testified that he did not at any time form the intent of remaining away from the service permanently is not compelling since the court may believe or reject the testimony of any witness in whole or in part. (Citing MCM, 1951, par 164a.) It is apparent from the record that close relatives of the accused were available and with whom he ultimately left his wife for care during his absence and the court was justified in concluding this purpose could have been accomplished in less time than 13 months. Furthermore, the absence resulted in the loss of an allotment then being paid to his wife. In view of the foregoing, the court was justified in rejecting the accused's explanation as not sufficiently satisfactory to rebut the inference arising from the prolonged absence that the accused intended at some time during his absence to remain away from his unit permanently. (Citing NCM 227, Charity, 11 CMR 621.) NCM 367, Myatt (1954) 17 CMR 533.

§ 65.1. Generally.

§ 65. Period of Absence

Although a stipulation of fact "that the accused was apprehended 2340 on 24 March 1954 with no ID or liberty card in his possession" is insufficient to prove apprehension, it is sufficient to establish a terminal date of the unauthorized absence. (Citing U. S. v. Benina

tex (No. 4005), 4 USCMA 98, 15 CMR 98.) CGCM 9816, Ansell (1954) 16 CMR 450.

§ 67.1. Generally.

§ 67. Manner of Termination

A stipulation of fact "that the accused was apprehended 2340 on 24 March 1954 with no ID or liberty card in his possession" is not sufficient to establish the fact of apprehension, inasmuch as it is subject to conjecture that the accused was apprehended by military authorities or that if apprehended by civil authorities the circumstances were such as to permit a finding of involuntary return.

With respect to proof of termination of desertion by apprehension, the government must produce evidence of enough operative facts or a stipulation introduced by the government must contain enough operative facts to sustain a conclusion of apprehension. It is not enough to show that the accused was apprehended by civil authorities. He may have been freed and then voluntarily surrendered to the military; or he may have been apprehended for a minor violation of state law, and then have voluntarily disclosed his status as an absentee without any motive of escaping a civil charge. (Citing U. S. v. Salter (No. 4166), 4 USCMA 338, 15 CMR 338; U. S. v. Nickaboine (No. 1794), 3 USCMA 152, 11 CMR 152.) CGCM 9816, Ansell (1954) 16 CMR 450.

§ 67.5. Apprehension by civil authorities.

The sole proof of termination of the alleged desertion by apprehension was the stipulation of expected testimony by a FBI agent that he apprehended the accused and that "the accused neither surrendered, requested that he be apprehended, nor voluntarily initiated his being apprehended." Held: The stipulation was insufficient to prove termination of desertion by apprehension, inasmuch as an apprehension by an FBI agent is not sufficient in itself to terminate an unauthorized absence from one of the armed forces. Termination results only from a return to military control, and in the instant case, whether the accused's return to military control was voluntary or involuntary was not shown. (Citing U. S. v. Beninate (No. 4005), 4 USCMA 98, 15 CMR 98; U. S. v. Cowans (No. 4724), 4 USCMA 308, 15 CMR 308; U. S. v. Salter (No. 4166), 4 USCMA 338, 15 CMR 338.)

Held also: Nor can involuntariness be inferred from a showing that the accused returned to military control one hour and forty-five minutes after his apprehension by the FBI agent. United States v. Crawford (No. 5372), ↳ USCMA 701, 16 CMR 275.

On a trial for desertion, the following stipulation of fact was legally adequate to sustain a finding of apprehension: "It is stipulated that on 2 April 1954 civilian authorities apprehended [name of accused], U. S. Coast Guard, as a person wanted by the United States Coast Guard." (Cf. U. S. v. Salter (No. 4166), 4 USCMA 338, 15 CMR 338; CGCM 9816, Ansell, 16 CMR 450.) CGCM 9818, Allbee (1954) 16 CMR 454.

The accused was convicted of desertion terminated by apprehension. The prosecution presented evidence to the effect that when he was arrested by civil authorities for being drunk and was told he was to be fingerprinted he indicated he was an absentee from the Air Force. The accused testified that he at all times intended to return and was on his way to surrender at a named place when he was arrested. He stated he voluntarily disclosed his military status prior to any threats of fingerprinting. Stipulated testimony of a certain witness was to the effect that the accused visited him and when he left the day prior to the date of his arrest, it was with the avowed intention of surrendering to military authorities. It also appeared the accused's wife returned to her home at that time and she wrote a letter to the accused's commanding officer informing him the accused was returning to military control. Held: When apprehension is alleged as an aggravating circumstance it must be proved beyond a reasonable doubt and in the instant case it was not, since the accused's testimony was unimpeached and the direction of his travel at the time of his arrest was such that it was not improbable. Moreover, the stipulated testimony of the other witness and his wife's letter tend to corroborate the accused's testimony that his return was voluntary. (Citing U. S. v. Nickaboine (No. 1794), 3 USCMA 152, 11 CMR 152; ACM 4088, Creamer, 1 CMR 690; ACM 6418, Harris, 9 CMR 814; ACM 6707, Leon, 10 CMR 630; U. S. v.

Lowery (No. 683), 2 USCMA 315, 8 CMR 115.) ACM 9533, Bradley (1954) 18 CMR 494.

Stipulation as to apprehension by civil authorities, see CGCM 9816, Ansell, supra § 67.1.

DISOBEDIENCE OF ORDERS AND

REGULATIONS

II. NATURE AND ELEMENTS OF OFFENSES. § 15. Failure to Obey.

§ 16. General Orders or Regulations.

§ 19. Lawfulness or Validity of Order or Regulation.

III. PROSECUTION.

A. IN GENERAL.

§ 27. Charges and Specifications.

§ 33. Pleas and Defenses.

§ 35. Instructions to Court.

B. EVIDENCE.

§ 38. Burden of Proof.

§ 41. Weight and Sufficiency.

§ 43. § 45. $ 47. $ 49.

- Failure to Obey General Order or Regulation. - Failure to Obey Other Orders.

51.

Dereliction of Duty.

Knowledge of Order or Regulation; Status of
Person Issuing Orders.

D. SENTENCE AND PUNISHMENT.

The accused was charged with violating "a lawful general order, to wit: Paragraph 3, Company Order 47, Company 'F', 17th Infantry Regiment." Held: Inasmuch as a "commander" is "an officer in charge of a company, battery, or larger unit" (see SR 320-5-1, par 2, 24 Nov 1953), and as the instant order was issued by a company commander and applied generally to his command, the order was a "general order." (Citing MCM, 1951, par 171a. Distinguishing U. S. v. Bunch (No. 2297), 3 USCMA 156, 11 CMR 186; U. S. v. Snyder (No. 409), 1 USCMA 423, 4 CMR 15). Classification of an order as a "general order" under UCMJ, Art 92(1) does not depend on whether the order was issued by the commander of a post or higher command. CM 373783, Smith (1954) 16 CMR 344.

It is manifest by the terms of the Bureau of Supplies and Accounts Manual that the orders contained therein are issued for the information and guidance of all persons in the Navy and that the orders and regulations as such are binding on all persons in the Naval Establishment. It further appears that the Bureau of Supplies and Accounts Manual is approved by the Secretary of the Navy, and when so issued and approved is to be considered as emanating from