United States v. Proctor

8 C.M.A. 658, 8 USCMA 658, 25 C.M.R. 162, 1958 CMA LEXIS 716, 1958 WL 3104

Opinions

Opinion of the Court

Homer Ferguson, Judge:

The issue presented concerns the correctness of an instruction which is similar to that recently condemned in the cases of United States v Cothern, 8 USCMA 158, 23 CMR 382, and United States v Soccio, 8 USCMA 477, 24 CMR 287. For the reasons set forth in those opinions the accused’s conviction of desertion in the instant case must be set aside.

The decision of the board of review is reversed. The record of trial is returned to The Judge Advocate General of the Air Force for reference to a board of review. The board, in its discretion, may approve the lesser offense of absence without leave and reassess the entire sentence or it may order a rehearing on the desertion charge.

Chief Judge Quinn concurs.