
    UNITED STATES, Appellee v WALTER R. BEST, Private E-2, U. S. Army, Appellant
    8 USCMA 592, 25 CMR 96
    No. 10,678
    Decided January 10, 1958
    
      Major Frank C. Stetson and First Lieutenant Lawrence R. Fullem were on the brief for Appellant, Accused.
    
      Lieutenant Colonel John G. Lee and First Lieutenant Jay D. Fischer were on the brief for Appellee, United States.
   Opinion of the Court

Homer Ferguson, Judge:

The accused’s unauthorized absence from his organization, terminated by apprehension, resulted in his subsequent conviction of desertion, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885. The accused pleaded guilty to the lesser included offense of absence without leave, in violation of Article 86 of the Code, supra, 10 USC § 886.

The conviction of desertion must be set aside. The instructions were similar to those in United States v Soccio, 8 USCMA 477, 24 CMR 287. 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 offense of absence without leave and reassess the entire sentence, or it may order a rehearing on the desertion charge.

Chief Judge Quinn concurs.

Judge Latimer dissents.  