
    UNITED STATES, Appellee v. ROBERT L. CURTIS, Jr., Second Lieutenant, U.S. Air Force, Appellant
    2 USCMA 311, 8 CMR 111
    No. 941
    Decided March 17, 1953
    Col. Kenneth B. Chase, USAF, and Capt. Frank Fedele, USAF, for Appellant.
    Col. Wendell C. Dreier, USAF, and Capt. William C. Carrow, III, USAF, for Appellee.
   Opinion of the Court

Robert E. Quinn, Chief Judge:

The accused Curtis was tried by general court-martial for desertion in violation of Article of War 58, 10 USC § 1530. He pleaded not guilty to desertion, but guilty to the lesser included offense of absence without leave in violation of Article of War 61, 10 USC § 1533. He was found guilty as charged and sentenced to dismissal, total forfeitures and confinement at hard labor for one year. The convening authority reduced the period of confinement to nine- months but otherwise approved. An Air Force board of review affirmed as modified. The accused has petitioned this Court for review.

We note another instance of an unauthorized consultation between the law officer and the court in the absence of the accused and his counsel. This lengthy discussion treated variously the subjects of punishment, forfeitures, and the effect of the old and new Manuals. The decisions of this Court have laid down the rule that these conferences deprive the accused of basic rights guaranteed him by Articles 26 (b) and 39 of the Uniform Code of Military Justice, 50 USC §§ 590 and 614. United States v. Wilmer Keith (No. 503), 4 CMR 85, decided July 30, 1952; United States v. McConnell (No. 596), 4 CMR 100, decided July 31, 1952; United States v. Henry M. Smith (No. 512), 4 CMR 123, decided August 6, 1952; and United States v. Wingert (No. 785), 4 CMR 166, decided August 8, 1952.

The decision of the board of review is reversed and a rehearing is ordered.

Judge Brosman concurs.

Latimer, Judge

(dissenting):

I dissent for the reasons set forth in United States v. Woods and Duffer (No. 1023), 8 CMR 3, decided February 19, 1953.  