United States v. Best

8 C.M.A. 592, 8 USCMA 592, 1958 CMA LEXIS 736

Opinion

Opinion of the Court

Homer Ferguson, Judge:

The accused’s unauthorized absence from his organization, terminated by apprehension, resulted in his subsequent conviction of desertion, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885. The accused pleaded guilty to the lesser included offense of absence without leave, in violation of Article 86 of the Code, supra, 10 USC § 886.

The conviction of desertion must be set aside. The instructions were similar to those in United States v Soccio, 8 USCMA 477, 24 CMR 287. The record is returned to The Judge Advocate General of the Army 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. Judge Latimer dissents.