
    UNITED STATES, Appellee v RICHARD J. MACKENSWORTH, Private E-2, U. S. Army, Appellant
    8 USCMA 298, 24 CMR 108
    No. 10,361
    Decided October 4, 1957
    
      
      First Lieutenant Lawrence R. Fullem and First Lieutenant Gerald G. Barton were on the brief for Appellant, Accused.
    
      Captain Thomas J. Nichols was on the brief for Appellee, United States.
   Opinion of the Court

HomeR FERGUSON, Judge:

The issue upon which review was granted in this case has already been decided adversely to the Government. United States v Cothern, 8 USCMA 158, 23 CMR 382; United States v Burgess, 8 USCMA 163, 23 CMR 387. The instruction condemned in those cases is present in the instant case. Accordingly, the findings of guilt of the offense of desertion must be set aside. 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 approve the lesser offense of absence without leave and reassess the sentence, or it may order a rehearing on the principal charge.

Chief Judge Quinn concurs.

Judge LatimeR dissents.  