United States v. Bogenreif

Opinion of the Court

The accused’s conviction of desertion must be set aside because of the law officer’s erroneous instruction regard*497ing the inference to be drawn from a much-prolonged absence. United States v Cothern, 8 USCMA 158, 23 CMR 382, and United States v Soccio, 8 USCMA 477, 24 CMR 287. 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 findings of guilt.

(dissenting):

I dissent for the reasons set forth in my separate opinion in United States v Soccio, 8 USCMA 477, 24 CMR 287.