United States v. Kittle

9 C.M.A. 321, 9 USCMA 321, 26 C.M.R. 101, 1958 CMA LEXIS 550, 1958 WL 3306

• Court: United States Court of Military Appeals
• Decided: June 6, 1958
• Docket: No. 10,982
• Status: Published

Opinion

Opinion of the Court

Robert E. Quinn, Chief Judge:

The accused was convicted of four specifications of unauthorized absence and three specifications of escape from confinement. Under specification 2, Charge I, the accused was convicted of an unauthorized absence from his organization at Truax Field, Wisconsin, from November 1 to November 27,1956. He was found guilty of an unauthorized absence from the same organization for the period from November 29, 1956, to April 24, 1957 (specification 3, Charge I). In Charge II he was charged with two specifications of escape from confinement from the base stockade at Truax Field, on November 1 and November 29, respectively. Although the place of each offense is ostensibly different, it is apparent from the evidence that the escape from the stockade provides the basis for the unauthorized absence entry in the morning report of the accused’s organization. See United States v Mitchell, 7 USCMA 238, 22 CMR 28. The third escape and unauthorized absence were from the same unit at the same time. It clearly-appears, therefore, that the proof required to establish each escape also establishes the corresponding unauthorized absence. Consequently, each group of offenses is not separately punishable. United States v Welch, 9 USCMA 255, 26 CMR 35; United States v Modesett, 9 USCMA 152, 25 CMR 414.

The decision of the board of review as to the sentence is set aside. The record of trial is returned to The Judge Advocate General of the Air Force for submission to a board of review for reassessment of the sentence.

Judge Ferguson concurs. Judge Latimer dissents.