United States v. Stanaszek

Opinion of the Court

This accused was tried by general court-martial and found guilty of desertion, in violation of Uniform Code of Military Justice, Article 85, 10 USC § 885, and failure to obey a lawful order, in violation of Code, supra, Article 92, 10 USC § 892. The order allegedly violated involved the accused’s duty to report back to his station. Rather than obey it, he absented himself without leave with the appropriate intent and thereby committed the offense of de*409sertion of which he was also found guilty. The law officer instructed the court members that the offenses were separately punishable, and the issue of multiplicity was not raised either at the trial or at any other level. It is nevertheless axiomatic that the penalties may not be so aggregated. United States v Granger, 9 USCMA 719, 26 CMR 499; United States v Helfrick, 9 USCMA 221, 25 CMR 483.

The petition for review is granted and the decision of the board of review is reversed. The record of trial is returned for reassessment of the sentence in light of the multiplicious nature of the charges.