3 C.M.A. 98 | United States Court of Military Appeals | 1953
Opinion of the Court
The accused stands convicted by general court-martial convened in Korea •of willful disobedience of a lawful order of his superior officer and of misbehavior before the enemy by cowardly •conduct, prescribed respectively 'by the Uniform Code of Military Justice, Articles 90, 99, 50 USC §§ 684, 693. Following approval by the convening authority and affirmance by a board of review, accused’s' petition for further review was granted by this Court.
In his instructions to the court-martial relating to the- elements of the offense of cowardly conduct, the law officer failed to instruct that the court must find that the acts of cowardice «charged were the product of fear. Clearly, this was prejudicial error requiring reversal of the cowardice conviction. United States v. Gilbertson (No. 318), 1 USCMA 465, 4 CMR 57, decided July 22, 1952; United States v. Soukup (No. 533), 2 USCMA 141, 7 CMR 17, decided January 23, 1953; United States v. James H. Smith (No. 887), 2 USCMA 197, 7 CMR 73, decided February 13, 1953.
Accordingly; the conviction of cowardly conduct is reversed. We note ample evidence to support the willful disobedience conviction and no other.error tainting it. The record is returned to The Judge Advocate General, United States Army, for rehearing or othér action not inconsistent with this opinion.
