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United States v. Newman

Court: United States Court of Military Appeals
Date filed: 1957-12-13
Citations: 8 C.M.A. 493, 8 USCMA 493
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Lead Opinion

Opinion of the Court

Homer Ferguson, Judge:

The accused was convicted of desertion by a general court-martial, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885. Since the findings of guilt returned by the members of the court were based upon instructions held to be erroneous by this Court in United States v Soccio, 8 USCMA 477, 24 CMR 287, and United States v Cothern, 8 USCMA 158, 23 CMR 382, the conviction must be set aside. Accordingly, the record of trial is returned to The Judge Advocate General of the Army for reference to a board of review. The board may, in its discretion, order a rehearing on the desertion charge or approve the lesser offense of absence without leave and reassess the sentence on the basis of the remaining approved finding of guilt.

*494Chief Judge Quinn concurs.