Opinion of the Court
Homer Ferguson, Judge:The accused’s unauthorized absence from his organization, terminated by apprehension, resulted in his subsequent conviction of desertion, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885. The accused pleaded guilty to the lesser included offense of absence without leave in violation of Article 86, of the Code, supra, 10 USC § 886. The conviction of desertion must be set aside. The instructions were erroneous and prejudicial. United States v Soccio, 8 USCMA 477, 24 CMR 287. The record is returned to The Judge Advocate General of the Army for reference to a board of review. The board, in its discretion, may affirm the lesser offense of absence without leave and reassess the sentence, or it may .order a rehearing on the desertion charge.
Chief Judge Quinn concurs.