8 C.M.A. 93 | United States Court of Military Appeals | 1957
Lead Opinion
Opinion of the Court
Charged with desertion and failure to obey a lawful order, in contravention of Articles 85 and 92, Uniform Code of Military Justice, 10 USC §§ 885 and 892, respectively, the accused soldier entered a plea of guilty. A general court-martial convicted him as charged, and sentenced him to dishonorable discharge, total forfeitures, and confinement for two and one-half years. The convening authority mitigated the period of confinement to eighteen months, but otherwise approved the findings and sentence, and the board of réview affirmed. Accused sought review here and we granted his petition on the issue of whether the travel order by the Chief Warrant Officer named in the specification is a lawful order.
This case arose in the same command, and involves a similar order by the same warrant officer that was considered by us in United States v Matthews, 8 US CMA 94, 23 CMR 318, decided this date. As we said in that instance, and so far as this record is concerned, the warrant officer was without authority to issue such a travel order. Accordingly, the conviction for failure to obey a lawful order is set aside and that charge and specification are dismissed. The record is returned to The Judge Advocate General of the Army for resubmission to the board of review for reassessment of sentence on the remaining conviction of desertion.
Dissenting Opinion
(dissenting):
I dissent for the reasons set out in my opinion in United States v Matthews, decided this date.
