United States v. Taglione

9 C.M.A. 214, 9 USCMA 214, 25 C.M.R. 476, 1958 CMA LEXIS 593, 1958 WL 3201

Opinion

Opinion of the Court

Robert E. Quinn, Chief Judge:

The accused was charged with unauthorized absence from 9:20 a.m. to 11:48 p.m., October 20, 1957, from the post guardhouse, his place of duty, and with breach of the conditions of his parole on October 20th by going outside the “limits of the Fort Monmouth military reservation.” He pleaded guilty to both charges. Relying upon United States v Modesett, 9 USCMA 152, 25 CMR 414, he now contends that the charges are multiplicious, and consequently correction of the sentence is required.

From the allegations of the specification and the evidence considered in the Article 32 investigation, it is clear that proof of the circumstances of the breach of parole also proves the unauthorized absence. As a result, the charges are the same for the purposes of punishment.

The decision of the board of review is reversed as to the sentence. The record of trial is returned to The Judge Advocate General of the Army for resubmission to the board of review for reassessment of the sentence.

Judge Ferguson concurs. Judge Latimer concurs in the result.