UNITED STATES, Appellee v. GARY R. SIDNEY, Private, U. S. Army, Appellant

UNITED STATES, Appellee v GARY R. SIDNEY, Private, U. S. Army, Appellant No. 28,370 July 5, 1974 Colonel Arnold I. Melnick, Captain Frederick G. Boynton, and Captain Gordon R. Denison were on the pleadings for Appellant^ Accused. Lieutenant Colonel Ronald M. Holdaway, Lieutenant Colonel Donald W. Hansen, and Captain Hugh W Brenneman, Jr., were on the pleadings for Appellee, United States. [MAJORITY — Per Curiam:] OPINION OF THE COURT Per Curiam: We granted review of two assignments of error. As to the first, the evidence indicates that an order to the accused by the company commander, regarding registration and safekeeping of personal weapons, was essentially an enjoinder to comply with existing regulations on the subject. Consequently, the accused’s misconduct should have been charged as a violation of Article 92(2), Uniform Code of Military Justice, 10 U.S.C. § 892(2), rather than under Article 90 of the Code, for which the punishment "is considerably less.” United States v Warts-baugh, 21 USCMA 535, 541, 45 CMR 309, 315 (1972). The second assignment of error affects the sentence; the Government concedes error and "joins with appellant in requesting . . . [the Court] set aside the sentence and authorize a rehearing thereon.” The decision of the Court of Military Review is reversed as to Charge I and its specification and the sentence. The findings of guilty as to Charge I are set aside, and the charge and specification are ordered dismissed. A rehearing on the sentence for the remaining findings of guilty may be ordered. Chief Judge Duncan did not participate in this case.