
    UNITED STATES, Appellee v LOUIS E. HENLEY, Seaman Apprentice, U. S. Navy, Appellant
    8 USCMA 340, 24 CMR 150
    No. 10,509
    Decided October 25, 1957
    
      Major R. D. Humphreys, USMC, was on the brief for Appellant, Accused.
    
      Lieutenant Colonel Charles H. Beale, Jr., USMC, was on the brief for Appellee, United States.
   Opinion of the Court

HOMER FERGUSON, Judge:

The accused was found guilty in accordance with his plea of absence without leave and missing movement through neglect, in violation of Articles 86 and 87, Uniform Code of Military Justice, 10 USC §§ 886 and 887. The missing movement offense occurred during the period of unauthorized absence. The issue here presented is the same as that recently decided in United States v Posnick, 8 USCMA 201, 24 CMR 11. There, we held that the offense of unauthorized absence was a necessarily included lesser offense of missing movement through neglect. The board of review, in its decision, did not consider the effect of multiplicity in arriving at an appropriate sentence. This was error. The record is ordered returned to The Judge Advocate General of the Navy for reference to a board of review for reconsideration of the sentence in conformity with the views herein expressed.

Chief Judge Quinn concurs.

Judge LatimeR dissents.  