United States v. Dehart

4 C.M.A. 556, 4 USCMA 556, 16 C.M.R. 130, 1954 CMA LEXIS 479, 1954 WL 2432

• Court: United States Court of Military Appeals
• Decided: July 9, 1954
• Docket: No. 5065
• Status: Published

Opinion

Opinion of the Court

PER Curiam:

The accused was convicted of two specifications of desertion. Both relate to the same period of unauthorized absence from the same organization. However, one alleges an intent to shirk important service, namely, movement to a port of embarkation for shipment overseas; the other charges an intent to remain away permanently. The law officer instructed separately on the maximum sentence that could be imposed on each specification, and advised the court that the total maximum sentence was a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for eight years. The court adjudged a sentence which included confinement at hard labor for three years. Thereafter, the convening authority approved the sentence, but suspended execution of the punitive discharge. A board of review affirmed. Setting out a number of claims of error, the accused has now petitioned this Court for further review.

In its brief, the Government concedes that it is unable to distinguish this case from United States v. Redenius, 4 USCMA 161, 15 CMR 161. Thus, it admits that the specifications are mul-tiplieitous, and that the law officer erred in his instructions on the maximum sentence. Our own examination of the record leads us to the same conclusion. We find no merit in the other assignments of error.

The decision of the board of review is reversed. The case is returned to The Judge Advocate General of the Army for submission to a board of review for determination of an appropriate sentence.