United States v. Newman

8 C.M.A. 493, 8 USCMA 493, 24 C.M.R. 303, 1957 CMA LEXIS 321, 1957 WL 4771

• Court: United States Court of Military Appeals
• Decided: December 13, 1957
• Docket: No. 10,368
• Status: Published

Opinions

Opinion of the Court

Homer Ferguson, Judge:

The accused was convicted of desertion by a general court-martial, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885. Since the findings of guilt returned by the members of the court were based upon instructions held to be erroneous by this Court in United States v Soccio, 8 USCMA 477, 24 CMR 287, and United States v Cothern, 8 USCMA 158, 23 CMR 382, the conviction must be set aside. Accordingly, the record of trial is returned to The Judge Advocate General of the Army for reference to a board of review. The board may, in its discretion, order a rehearing on the desertion charge or approve the lesser offense of absence without leave and reassess the sentence on the basis of the remaining approved finding of guilt.

Chief Judge Quinn concurs.