
    UNITED STATES, Appellee v ROLAND E. SMITH, Private First Class, U. S. Marine Corps, Appellant
    18 USCMA 604, 40 CMR 316
    No. 22,139
    September 26, 1969
    
      
      Lieutenant Kenneth F. Ripple, JAGO, USNR, was on the pleadings for Appellant, Accused.
    
      Colonel C. R. Larouche, USMC, Lieutenant Colonel Charles J. Keever, USMC, Captain Lester G. Fant, III, USMCR, and Captain Charles E. Patterson, USMCR, were on the pleadings for Appellee, United States.
   Opinion of the Court

DARDEN, Judge:

The accused was tried and convicted by a special court-martial convened at Camp Lejeune, North Carolina, for dereliction of duty, in violation of Article 92, Uniform Code of Military Justice, 10 USC § 892. Intermediate appellate authorities have affirmed his conviction.

The specification under the charge alleges dereliction of dirty' on or about January 21, 1969, “in that he [the accused] willfully failed to,properly walk his post, the said Post Number 1, French Creek Area, Camp Lejeune, North Carolina, by sitting down upon said post.” The record is devoid of evidence that would sustain such an allegation.

Prosecution has shown that the accused was posted as a sentinel on Post Number 1 by the Corporal of the Guard at 3:45 a.m., on the morning in question. • Accused gave no indication that he was sick or otherwise • unable to perform his duty. At- approximately 4:15 a.m., the Officer of the Day checked Post Number 1 and could not find Smith. A search for the accused followed. The Sergeant of the Guard found Smith at 5:50 a.m., off post, apparently asleep on a couch in Building 304. In essence, a violation of Article 92, Uniform Code of Military Justice, 10 USC § 892, is alleged and charged, yet an entirely separate violation showing the misbehavior of a sentinel leaving his post before being properly relieved, in violation of Article 113, Code, supra, 10 USC § 913, is proved. This variation between allegation and proof is fatal, necessitating reversal of the accused’s conviction. United States v Elisey, 16 USCMA 455, 37 CMR 75; United States v Dotson, 17 USCMA 352, 38 CMR 150.

Accordingly, the decision of the board of review is reversed. The record of trial is returned to the Judge Advocate General of the Navy. The charge and its specification are ordered dismissed.

Chief Judge Quinn and Judge FeR-guson concur.  