United States v. Linkey

8 C.M.A. 492, 8 USCMA 492, 24 C.M.R. 302, 1957 CMA LEXIS 320, 1957 WL 4770

• Court: United States Court of Military Appeals
• Decided: December 13, 1957
• Docket: No. 10,281
• Status: Published

Opinion

Opinion of the Court

Homer Ferguson, Judge:

The desertion instruction found in the instant case has been condemned in United States v Soccio, 8 USCMA 477, 24 CMR 287. For the reasons stated in that opinion the accused’s conviction of desertion in specifications 1 and 2 of Charge I must be set aside. The decision of the board of review is reversed and the record returned to The Judge Advocate General of the Army for further reference to a board of review. The board, in its discretion, may approve the lesser offenses of absence without leave and reassess the entire sentence on the basis of the remaining approved findings of guilt, or it may order a rehearing on the desertion charge.

Chief Judge Quinn concurs.

Latimer, Judge

(concurring in the result) :

I concur in the result solely for the reason expressed in United States v Sumrel, 8 USCMA 399, 24 CMR 209 (concurring opinion).