
    UNITED STATES, Appellee v HENRY P. WELCH, Private E-1, U. S. Army, Appellant
    9 USCMA 255, 26 CMR 35
    
      No. 10,894
    Decided May 16, 1958
    
      Major Edivard Fenig argued the cause for Appellant, Accused.
    
      First Lieutenant Allen I. Saeks argued the cause for Appellee, United States. With him on the brief were Lieutenant Colonel John G. Lee and Major Thomas J. Nichols.
    
   Opinion of the Court

ROBERT E. Quinn, Chief Judge:

The question before us is whether the accused can be punished separately for offenses for which he was convicted on his plea of guilty.

Prom the specifications and the evidence it appears that in May 1957, the accused was restricted to the limits of his company area; while the restriction was in effect he left the company without authority and remained absent for 31 days. Upon his return, he was confined in the post stockade. In June, he again departed without authority. When he was returned to military control in July, he was charged with unauthorized absence and breach of restriction for his May conduct, and for his June act he was charged with unauthorized absence from the post stockade “his place of duty” and escape from confinement. The unauthorized absence constitutes part of the proof for each of the other offenses. As a result, the absence and the other offense in each group is not separately punishable. United States v Modesett, 9 USCMA 152, 25 CMR 414.

The duplication of the charges was not considered by any of the sentencing authorities below. Accordingly, the record of trial is returned to The Judge Advocate General of the Army for submission to the board of review for reconsideration of the sentence.

Judge FERGUSON concurs.

Judge LatimeR dissents.  