(dissenting) :
In my opinion, the instructional omission presents no fair risk of prejudice to the accused.
The accused was charged with two unauthorized absences and breach of restriction. The first absence began on January 26, 1967, and terminated on February 24, 1967; the second absence began on February 27, 1967, and ended on March 19, 1967. At the time of the second absence, the accused was in restriction. From the record of previous convictions, it is apparent the accused committed the first of these offenses shortly after he was released from confinement. It is also apparent that the accused wanted the court-martial to include a discharge in the sentence. His counsel indicated that the accused insisted he make no argument on the sentence. Since the accused got “precisely that which” he himself wanted, I am unable to see how he was prejudiced by the instructional error. United States v Blunk, 17 USCMA 158, 161, 37 CMR 422.
I would affirm the decision of the board of review.