UNITED STATES, Appellee v. JAMES V. PROCTOR, JR., Basic Airman, U. S. Air Force, Appellant

UNITED STATES, Appellee v JAMES V. PROCTOR, JR., Basic Airman, U. S. Air Force, Appellant 8 USCMA 658, 25 CMR 162 No. 10,629 Decided January 31, 1958 Lieutenant Colonel Ellis L. Gottlieb and Major George M. Wilson were on the brief for Appellant, Accused. Lieutenant Colonel Robert W. Michels and Major Carl Goldschlager were on the brief for Appellee, United States. [MAJORITY — Homer Ferguson, Judge:] Opinion of the Court Homer Ferguson, Judge: The issue presented concerns the correctness of an instruction which is similar to that recently condemned in the cases of United States v Cothern, 8 USCMA 158, 23 CMR 382, and United States v Soccio, 8 USCMA 477, 24 CMR 287. For the reasons set forth in those opinions the accused’s conviction of desertion in the instant case must be set aside. The decision of the board of review is reversed. The record of trial is returned to The Judge Advocate General of the Air Force for reference to a board of review. The board, in its discretion, may approve the lesser offense of absence without leave and reassess the entire sentence or it may order a rehearing on the desertion charge. Chief Judge Quinn concurs. [DISSENT — Latimer, Judge] Latimer, Judge (dissenting): I dissent. I dissent for the reasons set forth in my separate opinion in United States v Soccio, 8 USCMA 477, 24 CMR 287.