United States v. Bogenreif

8 C.M.A. 496, 8 USCMA 496, 24 C.M.R. 306, 1957 CMA LEXIS 325, 1957 WL 4775

Opinions

Opinion of the Court

Homer Ferguson, Judge:

The accused’s conviction of desertion must be set aside because of the law officer’s erroneous instruction regard ing the inference to be drawn from a much-prolonged absence. United States v Cothern, 8 USCMA 158, 23 CMR 382, and United States v Soccio, 8 USCMA 477, 24 CMR 287. Accordingly, the record of trial is returned to The Judge Advocate General of the Army for reference to a board of review. The board may, in its discretion, order a rehearing on the desertion charge or approve the lesser offense of absence without leave and reassess the sentence on the basis of the remaining approved findings of guilt.

Chief Judge Quinn concurs.