
    UNITED STATES, Appellee v ALVIN L. LYONS, Private E-1, U. S. Army, Appellant
    8 USCMA 259, 24 CMR 69
    No. 10,124
    Decided September 20, 1957
    
      Major Edward Fenig and First Lieutenant Edwin E. Allen were on the brief for Appellant, Accused.
    
      Lieutenant Colonel Thomas J. Newton, Lieutenant Colonel John G. Lee, Captain Thomas J. Nichols, and First Lieutenant Jay D. Fischer were on the brief for Appellee, United States.
   Opinion of the Court

HOMER FERGUSON, Judge:

The accused was convicted of desertion for an absence of some four and one-half months’ duration, terminated by apprehension, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885. He had pleaded not guilty to desertion, but guilty to the lesser offense of absence without leave, in contravention of Article 86, Uniform Code of Military Justice, 10 USC § 886. The issue raised here is the same as that previously decided 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 stated in those opinions, the accused’s conviction cannot stand. The record of trial is returned to The Judge Advocate General of the Army for reference to a board of review. The board may, in its discretion, approve the lesser offense of absence without leave and reassess the sentence, or it may order a rehearing on the desertion charge.

Chief Judge Quinn concurs.

Judge Latimer dissents.  