
    UNITED STATES, Appellee v DAVID G. LINKEY, Private First Class, U. S. Army, Appellant
    8 USCMA 492, 24 CMR 302
    No. 10,281
    Decided December 13, 1957
    
      Colonel Edward M. O’Connell, Captain Arnold I. Mélniclc, and First' Lieutenant Stephen D. Potts were on the brief for Appellant, Accused.
    
      Lieutenant Colonel John G. Lee, First Lieutenant Jay D. Fischer, and First Lieutenant Thomas M. Lofton were on the brief for Appellee, United States.
   Opinion of the Court

Homer Ferguson, Judge:

The desertion instruction found in the instant case has been condemned in United States v Soccio, 8 USCMA 477, 24 CMR 287. For the reasons stated in that opinion the accused’s conviction of desertion in specifications 1 and 2 of Charge I must be set aside. The decision of the board of review is reversed and the record returned to The Judge Advocate General of the Army for further reference to a board of review. The board, in its discretion, may approve the lesser offenses of absence without leave and reassess the entire sentence on the basis of the remaining approved findings of guilt, 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 solely for the reason expressed in United States v Sumrel, 8 USCMA 399, 24 CMR 209 (concurring opinion).  