
    UNITED STATES, Appellee v. DESMOND B. McRORY, Private, U. S. Army, Appellant
    1 USCMA 274, 3 CMR 8
    No. 433
    Decided March 24, 1952
    1st Lt. Charles H. Taylor, USA, and Lt. Col. James C. Hamilton, USA, for Appellant.
    Lt. Col. Thayer Chapman, USA, and 1st Lt. Kenneth A. Howard, USA, for Appellee.
   Opinion of the Court

PER CURIAM:

Petitioner was charged with and convicted of the offense of willful disobedience of a superior officer, in violation of the Uniform Code of Military Justice, , Article 90, 50 USC § 684. Trial was by general court-martial in Korea on August 12, 1951. Petitioner was sentenced to a dishonorable discharge, total forfeitures and confinement at hard labor for two year's. Army reviewing authorities have upheld the findings and' sentence, and petitioner seeks grant of review.

The situation in this case parallels precisely that involved in United States v. Rhoden, 1 USCMA 193, 2 CMR 99, decided February 26, 1952. Both appellate defense and government counsel concede that the principles announced in Rhoden are controlling here. The charge here was willful disobedience of orders, and the law officer instructed the court that the elements of the offense were (1) reception of the ordei% and (2) disobedience of the order. The instruction is susceptible of an interpretation allowing conviction for willful disobedience on the legal standard applicable 'to the lesser offense of failure to obey. Maximum sentence for the latter Is bad conduct discharge, total forfeitures and confinement at hard labor for six months.

Following the views expressed in United States v. Rhoden, supra, the petition is granted and the decision of the board of review is reversed. The case is returned to The Judge Advocate General of the Army for appropriate action.  