
    UNITED STATES, Appellee v MILTON L. THOMAS, Private E-1, U. S. Army, Appellant
    8 USCMA 487, 24 CMR 297
    
      No. 10,118
    Decided December 13, 1957
    
      First Lieutenant Edwin E. Allen argued the cause for Appellant, Accused. With him on the brief was Major Edward Fenig.
    
    
      First Lieutenant Jay D. Fischer argued the cause for Appellee, United States. With him on the brief were Lieutenant Colonel Thomas J. Newton and Lieutenant Colonel John G. Lee.
    
   Opinion of the Court

HOMER FERGUSON, Judge:

The issue presented in this case is the same as that decided by the Court in United States v Soccio, 8 USCMA 477, 24 CMR 287, and United States v Cothern, 8 USCMA 158, 23 CMR 382. For the reasons stated in those opinions, the accused’s conviction of the two offenses of desertion must be set aside. The record is returned to The Judge Advocate General of the Army for reference to a board of review. The board, in its discretion, may affirm the lesser offenses of absence without leave and reassess the sentence, or it may order a rehearing on the desertion charge.

Chief Judge Quinn concurs.

LatimeR, Judge

(concurring in the result) :

I concur in the result only for the reason set forth in United States v Sumrel, 8 USCMA 399, 24 CMR 209 (concurring opinion).  