UNITED STATES, Appellee v. LeROY F. HILLYARD, Private E-1, U. S. Army, Appellant

UNITED STATES, Appellee v LeROY F. HILLYARD, Private E-1, U. S. Army, Appellant 8 USCMA 495, 24 CMR 305 No. 10,404 Decided December 13, 1957 Major Edward Fenig and First Lieutenant William H. Carpenter were on the brief for Appellant, Accused. Major Thomas J. Nichols was on the brief for Appellee, United States. [MAJORITY — Homer Ferguson, Judge:] Opinion of the Court Homer Ferguson, Judge: The law officer incorrectly instructed the court-martial on the issue of intent on the part of the accused in the offense of desertion, and for that reason the conviction must be reversed. The instructional errors are outlined in the opinions of this Court in United States v Soccio, 8 USCMA 477, 24 CMR 287, and United States v Cothern, 8 USCMA 158, 23 CMR 382. The record of trial is returned to The Judge Advocate General of the Army for reference to a board of review. The board may reduce the offense to 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. My reasons for so doing are expressed in my concurring opinion in United States v Soccio, 8 USCMA 477, 24 CMR 287.