
    UNITED STATES, Appellee v FRANCIS J. NEWMAN, Sergeant, U. S. Army, Appellant
    8 USCMA 493, 24 CMR 303
    No. 10,368
    Decided December 13, 1957
    
      Major Frank C. Stetson and First Lieutenant Neil Flanagin 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 was convicted of desertion by a general court-martial, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885. Since the findings of guilt returned by the members of the court were based upon instructions held to be erroneous by this Court in United States v Soccio, 8 USCMA 477, 24 CMR 287, and United States v Cothern, 8 USCMA 158, 23 CMR 382, the conviction must be set aside. Accordingly, the record of trial is returned to The Judge Advocate General of the Army for reference to a board of review. The board may, in its discretion, order a rehearing on the desertion charge or approve the lesser offense of absence without leave and reassess the sentence on the basis of the remaining approved finding of guilt.

Chief Judge Quinn concurs.

Latimer, Judge

(dissenting):

I dissent for the reasons expressed in United States v Soccio, 8 USCMA 477, 24 CMR 287 (concurring opinion).  