## Facts

- Private First Class Donald R. Mackey, USMC, received orders to eventually report to ground forces in the Western Pacific during the Vietnam War.
- Rather than report as ordered, Mackey left his place of duty without authority and went to his home of record.
- Mackey lived at home during the unauthorized absence and did not assume a false identity or otherwise conceal where he was living.
- The unauthorized absence lasted about 26 months.
- Mackey did not return to military control on his own; he was apprehended at a location far from his duty station.
- During the absence, Mackey kept military property and documents, including his uniform, service records, identification cards, and tags (dog tags).
- At a general court-martial, the military judge found Mackey guilty of desertion under Article 85, UCMJ.
- On appeal, Mackey argued the evidence left reasonable doubt about whether he had the required intent to remain away permanently, emphasizing that he lived openly at home and kept his uniform and identification.

## Issues

1. Whether the evidence was legally sufficient to prove beyond a reasonable doubt that Mackey intended to remain away from the service permanently, as required for desertion under Article 85.
2. Whether Mackey’s living at his home of record and retaining his uniform and military identification and records created reasonable doubt as a matter of law as to the intent element.

## Decision

- The Navy–Marine Corps Court of Military Review affirmed the conviction for desertion and the sentence.
- The court held the factfinder could infer intent to remain away permanently from the length and circumstances of the unauthorized absence.
- The court rejected the claim that living at home and keeping military items negated desertion intent as a matter of law.

## Legal Principles

- Desertion under Article 85, UCMJ, requires proof that the accused absented himself without authority and, at the time the absence began, intended to remain away permanently.
- Because intent is rarely shown by direct evidence, intent to remain away permanently may be proved by circumstantial evidence and reasonable inferences drawn from conduct.
- A lengthy unauthorized absence, coupled with failure to report as ordered and return only after apprehension, may support an inference that the accused meant to abandon military service permanently.
- Retaining a uniform, identification cards, service records, or similar items may be considered by the factfinder, but those facts do not automatically defeat a desertion finding when other circumstances support permanent intent.
- Desertion does not require concealment; living openly at a home address does not, by itself, prevent a finding that the accused intended not to return.
- On appellate review for legal sufficiency, the court does not reweigh competing inferences; it asks whether the record contains evidence from which the trier of fact could find the elements proved beyond a reasonable doubt.

## Conclusion

The court affirmed Mackey’s desertion conviction, concluding that a 26-month unauthorized absence beginning when he was under Vietnam-era deployment orders, followed by return only through apprehension, permitted the military judge to find intent to remain away permanently despite Mackey’s open residence at home and retention of his uniform and military identification and records.


United States v. Mackey, 46 C.M.R. 754 (1972)