United States v. Best

Opinion of the Court

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 similar to those in 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 entire sentence, or it may order a rehearing on the desertion charge.