United States v. Wagner

8 C.M.A. 395, 8 USCMA 395, 24 C.M.R. 205, 1957 CMA LEXIS 347, 1957 WL 4741

• Court: United States Court of Military Appeals
• Decided: November 8, 1957
• Docket: No. 10,331
• Status: Published

Opinion

Opinion of the Court

Per Curiam :

The accused was charged with four violations of the Uniform Code of Military Justice, including larceny and desertion. He pleaded guilty to three of the charges. On the fourth, the desertion offense, he pleaded not guilty, but guilty to an unauthorized absence in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886. However, he was convicted as charged. His conviction having been affirmed by intermediate appellate authorities, he petitioned this Court for grant of review. We granted the petition.

Two issues are presented for our consideration. Both pertain to the desertion charge. The Government concedes that one of the issues has been decided in the accused’s favor by some of our recent decisions. In • a motion for reconsideration of our order granting review, it also acknowledges that it would not oppose the second issue if the case were returned to the board of review for consideration. In view of our disposition of the case, the Government’s motion for reconsideration of our order granting the accused’s petition for grant of review is granted.

Under the circumstances we think the interests of justice will be best served by accepting the Government’s concessions and granting the accused the relief to which he is entitled. Accordingly, the decision of the board of review is set aside insofar as it relates to Charge I and its specification, and the sentence. The record of trial is returned to The Judge Advocate General for resubmission to the board of review. In its discretion, the board of review can order a rehearing on Charge I or affirm a finding of guilty in violation of Article 86, Uniform Code of Military Justice, supra, and reassess-the sentence on the basis of the lesser offense and the other findings of guilty.