United States v. Newman

Opinion of the Court

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.

(dissenting):

I dissent for the reasons expressed in United States v Soccio, 8 USCMA 477, 24 CMR 287 (concurring opinion).