United States v. Stanaszek

12 C.M.A. 408, 12 USCMA 408, 30 C.M.R. 408, 1961 CMA LEXIS 235, 1961 WL 4464

• Court: United States Court of Military Appeals
• Decided: May 26, 1961
• Docket: No. 14,928
• Status: Published

Opinion

Opinion of the Court

PER CURIAM:

This accused was tried by general court-martial and found guilty of desertion, in violation of Uniform Code of Military Justice, Article 85, 10 USC § 885, and failure to obey a lawful order, in violation of Code, supra, Article 92, 10 USC § 892. The order allegedly violated involved the accused’s duty to report back to his station. Rather than obey it, he absented himself without leave with the appropriate intent and thereby committed the offense of desertion of which he was also found guilty. The law officer instructed the court members that the offenses were separately punishable, and the issue of multiplicity was not raised either at the trial or at any other level. It is nevertheless axiomatic that the penalties may not be so aggregated. United States v Granger, 9 USCMA 719, 26 CMR 499; United States v Helfrick, 9 USCMA 221, 25 CMR 483.

The petition for review is granted and the decision of the board of review is reversed. The record of trial is returned for reassessment of the sentence in light of the multiplicious nature of the charges.