UNITED STATES, Appellee v. FRANCIS J. SMITH, Jr., Private First Class, U. S. Army, Appellant

UNITED STATES, Appellee v FRANCIS J. SMITH, Jr., Private First Class, U. S. Army, Appellant 12 USCMA 594, 31 CMR 180 No. 15,228 December 22, 1961 Captain Vernon C. Maulson argued the cause for Appellant, Accused. With him on the brief were Lieutenant Colonel Ralph W. Wofford and First Lieutenant Ira M. Lechner. First Lieutenant Carl F, Wrench argued the cause for Appellee, United States. With him on the brief were Lieutenant Colonel James G. Mc-Conaughy and Major Francis M. Cooper. [MAJORITY — Quinn, Chief Judge:] Opinion of the Court Quinn, Chief Judge: The issue in this case is the same as that presented in United States v Kitchens, 12 USCMA 589, 31 CMR 175. For the reasons set out in our opinion in that case, we set aside the decision of the board of review as to the sentence. The record of trial is returned to The Judge Advocate General of the Army for submission to a board of review. In its discretion, the board of review may reassess the sentence as indicated in the Kitchens case, supra, or direct a rehearing thereon. Judges Ferguson and Kilday concur.