
    UNITED STATES, Appellee v PETER J. BOGENREIF, Private E-2, U. S. Army, Appellant
    8 USCMA 496, 24 CMR 306
    No. 10,524
    Decided December 13, 1957
    
      Colonel Edward M. O’Connell and First Lieutenant William L. Garwood 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.
   Opinion of the Court

Homer Ferguson, Judge:

The accused’s conviction of desertion must be set aside because of the law officer’s erroneous instruction regarding the inference to be drawn from a much-prolonged absence. United States v Cothern, 8 USCMA 158, 23 CMR 382, and United States v Soccio, 8 USCMA 477, 24 CMR 287. Accordingly, the record of trial is returned to The Judge Advocate General of the Army for reference to a board of review. The board may, in its discretion, order a rehearing on the desertion charge or approve the lesser offense of absence without leave and reassess the sentence on the basis of the remaining approved findings of guilt.

Chief Judge Quinn concurs.

Latimer, Judge

(dissenting):

I dissent for the reasons set forth in my separate opinion in United States v Soccio, 8 USCMA 477, 24 CMR 287.  