
    UNITED STATES, Appellee, v. Fredrick H. PORTER, Private, U.S. Marine Corps, Appellant.
    No. 30,115.
    U. S. Court of Military Appeals.
    July 11, 1975.
    
      Lieutenant Michael C. Barr, JAGC, USNR, was on the pleadings for Appellant, Accused.
    
      Lieutenant Colonel P. N. Kress, USMC and Lieutenant J. W. Malley, Jr., JAGC, USNR, were on the pleadings for Appellee, United States.
   OPINION OF THE COURT

PER CURIAM:

The military judge erred prejudicially by instructing the members of the accused’s court-martial that in fact “the taking by the accused was with the intent permanently to deprive Private First Class Claude Fisher of the use and benefit of the property.” United States v. Gaiter, 23 U.S.C.M.A. 438, 50 C.M.R. 397, 1 M.J. 54 (1975).

The decision of the U.S. Navy Court of Military Review is reversed and the record of trial is returned to the Judge Advocate General of the Navy. A rehearing may be ordered.  