United States v. Henley

8 C.M.A. 340, 8 USCMA 340, 24 C.M.R. 150, 1957 CMA LEXIS 370, 1957 WL 4730

• Court: United States Court of Military Appeals
• Decided: October 25, 1957
• Docket: No. 10,509
• Status: Published

Opinion

Opinion of the Court

HOMER FERGUSON, Judge:

The accused was found guilty in accordance with his plea of absence without leave and missing movement through neglect, in violation of Articles 86 and 87, Uniform Code of Military Justice, 10 USC §§ 886 and 887. The missing movement offense occurred during the period of unauthorized absence. The issue here presented is the same as that recently decided in United States v Posnick, 8 USCMA 201, 24 CMR 11. There, we held that the offense of unauthorized absence was a necessarily included lesser offense of missing movement through neglect. The board of review, in its decision, did not consider the effect of multiplicity in arriving at an appropriate sentence. This was error. The record is ordered returned to The Judge Advocate General of the Navy for reference to a board of review for reconsideration of the sentence in conformity with the views herein expressed.

Chief Judge Quinn concurs. Judge LatimeR dissents.