8 C.M.A. 524 | United States Court of Military Appeals | 1957
Opinion of the Court
Inter alia, the accused was tried and convicted upon a charge of desertion. Although he pleaded not guilty to this offense, he did plead guilty to the lesser included offense of absence without leave. The staff legal officer in his review advised that “The record of trial is legally sufficient to support' the findings and the sentence.” Both the convening authority and board of review affirmed with a modification of sentence, and we granted review to consider whether the law officer erred in failing to instruct on apprehension and whether the staff legal officer’s advice on the legal sufficiency of the record was erroneous.
After the appellant filed his brief, the Government introduced a motion to remand to the board of review. Therein they concede error as to both the first and second issue specified by this Court. See United States v Grice, 8 USCMA 166, 23 CMR 390; United States v Johnson, 8 USCMA 173, 23 CMR 397; United States v McDonald, 6 USCMA 575, 20 CMR 291. However, they suggest that, as the accused pleaded guilty to absence without leave under Charge I, an approval of this lesser included offense would vitiate the prejudicial effect of both errors. See United States v Lucas, 1 USCMA 19, 1 CMR 19; United States v Clay, 1 USCMA 74, 1 CMR 74.
As the accused joins in the proposed action, the Government’s motion is granted. The case is returned to the board of review which, in its discretion, may either approve a finding of absence without leave and assess an appropriate sentence, or order a rehearing.