United States v. Cuero

19 C.M.A. 398, 19 USCMA 398, 41 C.M.R. 398, 1970 CMA LEXIS 894, 1970 WL 7366

• Court: United States Court of Military Appeals
• Decided: April 24, 1970
• Docket: No. 22,804
• Status: Published

Opinion

Opinion of the Court

Daeden, Judge:

Pursuant to his plea of guilty, the appellant was convicted of several offenses, including two specifications of desertion, one alleging an intent to remain away permanently, the other an intent to shirk important service, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885. Because they cover the same period of time they are multiplicious for sentence purposes.

This case was tried before United States v Care, 18 USCMA 535, 40 CMR 247 (1969). The law officer’s inquiry into the providence of Cuero’s plea does not establish that the appellant understood every element of the desertions alleged in the two specifications. The appellant’s testimony in mitigation admits an unauthorized absence but fails to show either his intent to shirk important service or to remain away permanently. Rather, he testified that he wished to remain in the Marine Corps and had requested to go to Vietnam as early as 1966. His convictions of desertion are, therefore, in error. United States v Boyd, 18 USCMA 581, 40 CMR 293 (1969).

Accordingly, the findings of guilty as to specifications 1 and 2 of the Charge are set aside. The record of trial is returned to the Judge Advocate General of the Navy. A rehearing may be ordered on the Charge and its two specifications, or the Court of Military Review may affirm the lesser included offense of absence without leave and reassess the punishment.

Chief Judge Quinn and Judge FERGUSON concur.