
    UNITED STATES, Appellee v JAMES T. UNDERWOOD, Fireman, U. S. Navy, Appellant
    8 USCMA 338, 24 CMR 148
    No. 10,143
    Decided October 25, 1957
    
      Lieutenant (jg) W. W. McNeilly, Jr., USNR, was on the brief for Appellant, Accused.
    
      Commander Guübert W. Martin, USN, and Major Charles R. Larouche, USMC, were on the brief for Appellee, United States. .
   Opinion of the Court

HomeR FERGUSON, Judge:

The accused was convicted by a special court-martial of the offenses of absence without leave and missing movement through design, in violation of Articles 86 and 87, Uniform Code of Military Justice. 10 USC §§ 886 and 887, respectively. The missing movement offense occurred during the period of unauthorized absence. A board of review approved only so much of the findings as found the accused guilty of unauthorized absence and missing movement through neglect and reassessed the sentence on that basis. We recently held in the case of United States v Posnick, 8 USCMA 201, 24 CMR 11, that the offense of unauthorized absence is a necessarily included lesser offense to the offense of missing movement through neglect. The board of review in this case did not consider the effect of multiplicity in its reassessment of the sentence. Accordingly, the decision of the board of review is reversed and the record is returned to The Judge Advocate General of the Navy for reference to a board of review for further consideration of the sentence.

Chief Judge QUINN concurs.

Judge LatimeR dissents.  