
    UNITED STATES, Appellee v ROBERT D. WHITROCK, Private, U. S. Marine Corps, Appellant
    8 USCMA 313, 24 CMR 123
    No. 9630
    Decided October 18, 1957
    
      Major R. D. Humphreys, USMC, was on the brief for Appellant, Accused.
    
      First Lieutenant Daniel P. Reardon, Jr., USMCR, was on the brief for Appellee, United States.
   Opinion of the Court

Homer Ferguson, Judge:

On July 26, 1957, this Court rendered its decision in the case of United States v Whitrock, 8 USCMA 185, 23 CMR 409, as well as in the companion case of United States v Smith, 8 USCMA 178, 23 CMR 402. Both cases had reached this Court on certification by The Judge Advocate General of the Navy. The accused thereafter filed a petition for reconsideration and a petition for grant of review assigning as error the law officer’s instructions relating to the desertion charge. Both petitions are hereby granted.

The instruction complained of is the same as that found objectionable in United States v Cothern, 8 USCMA 158, 23 CMR 382, and United States v Burgess, 8 USCMA 163, 23 CMR 387. For the reasons set forth in those opinions the accused’s conviction of desertion must be reversed. The record is returned to The Judge Advocate General of the Navy for reference to a board of review. The board, in its discretion, may approve the lesser offense of absence without leave and reassess the entire sentence or it may order a rehearing on the desertion charge.

Chief Judge Quinn concurs.

Judge Latimer dissents.  