(dissenting):
This case is not at all like Marsh, 3 USCMA 48, 11 CMR 48. There, the accused was charged with a violation of the order of Captain Sikes. The evidence, however, showed that the order was actually issued by Lieutenant General Hodge. At the trial, the accused moved for a finding of not guilty on two grounds: (1) That there was a fatal variance between the allegation and the proof, and (2) that there was no legal authority on the part of Captain Sikes to issue a travel order. The motion *96was denied. The question on which we granted review, and on which we decided the case, was whether there was “a fatal variance between the proof and allegation.”
Here, the specification alleges the violation of an order to report given by Warrant Officer Righter. There is no mention, and no evidence, of an order by any other officer. In particular, there is no allegation or evidence of an order authorizing “travel allowances” which was issued by the warrant officer. And, lest it be contended that evidence of such an order was not presented because the accused entered an inadvertent plea of guilty, I think it appropriate to determine what prompted the accused to plead guilty. The allied papers show that an order by the Commanding Officer of Fort Monroe transferred the accused to Fort Knox, and directed the Transportation Corps to supply the necessary transportation. To this order was added the order of Warrant Officer Righter. It clearly appears that this order was intended to be the personal order of the warrant officer, and in accord with the language in the Marsh ease. I would, therefore, order the filing of briefs and hear arguments on the case.