
    UNITED STATES, Appellee v JOHN Q. THOMAS, Airman Basic, U. S. Air Force, Appellant
    14 USCMA 223, 34 CMR 3
    No. 17,067
    October 18, 1963
    
      Colonel Daniel E. Henderson, Jr., and Major Hugh J. Dolan were on the brief for Appellant, Accused.
    
      Lieutenant Colonel Emanuel Lewis and Captain Donald W. Brewer were on the brief for Appellee, United States.
   Opinion of the Court

Per Curiam:

Among other offenses presented to a special court-martial, the accused pleaded guilty to and was found guilty of wrongful appropriation- of a parka and a pair of boots from a fellow airman, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. In the course of the sentence procedure, it was indicated that the accused had been restricted. He broke restriction and was arrested by the Air Police who brought him to the Air Police office. However, he broke the arrest to return to his room. He then wanted to go out to eat. Since his keys were in possession of the Air Police, he went to the room of “his friend” and “borrowed” the parka and boots “just for the express purpose of going to eat.” He left a signed note reading: “Say Wheeler, I am borrowing your parka, boots and cap. Will bring it back later. Thanks.” While in the dining hall, the accused was again apprehended.

These circumstances tend strongly to negate the criminal intent required for a violation of Article 121. United States v Hayes, 8 USCMA 627, 25 CMR 131. It was, therefore, incumbent upon the president of the special court-martial “to inquire into the providence of the plea of guilty . . . and, if accused did not disavow” this account of the transaction to set it aside. United States v Caid, 13 USCMA 348, 351, 32 CMR 348.

The decision of the board of review is reversed as to Charge III and its specification and the sentence. The record of trial is returned to The Judge Advocate General of the Air Force for submission to the board of review. In its discretion the board of review may dismiss Charge III and its specification and reassess the sentence on the basis of the remaining findings of guilty or order a rehearing on that charge and the sentence.  