UNITED STATES, Appellee v. EZEKIEL WASHINGTON, Specialist Second Class, U. S. Army, Appellant

UNITED STATES, Appellee v EZEKIEL WASHINGTON, Specialist Second Class, U. S. Army, Appellant 8 USCMA 494, 24 CMR 304 No. 10,369 Decided December 13, 1957 Major Edward Fenig and First Lieutenant Edwin E. Allen were on the brief for Appellant, Accused. Lieutenant Colonel John G. Lee and First Lieutenant Jay D. Fischer were on the brief for Appellee, United States. [MAJORITY — Homer Ferguson, Judge:] Opinion of the Court Homer Ferguson, Judge: 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 erroneous and prejudicial. 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 sentence, or it may .order a rehearing on the desertion charge. Chief Judge Quinn concurs. [DISSENT — Latimer, Judge] Latimer, Judge (dissenting): I dissent for reasons expressed in my concurring opinion in United States v Soccio, 8 USCMA 477, 24 CMR 287, decided this day.