Opinion of the Court
Homer Ferguson, Judge:The issue here presented has been decided in appellant’s favor by 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 stated in those opinions, the conviction 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 Army for reference to a board of review. The board, in its discretion, may approve the lesser offense of absence without leave and reassess the sentence or it may order a rehearing on the principal charge.
Chief Judge Quinn concurs. Latimer, Judge (concurring in the result) :I concur in the result only for the reason set forth in United States v Sumrel, 8 USCMA 399, 24 CMR 209 (concurring opinion).