1 C.M.A. 532 | United States Court of Military Appeals | 1952
The accused was tried by Navy special court-martial on the following offenses: Disobedience of a lawful order of a noncommissioned officer, disobedience of a lawful order of a superior officer; failure to report; breaking restriction (twice) ; and absence without leave. The accused pleaded not guilty on the first three specifications, guilty on the last three. She was found guilty on all and sentenced to a bad-conduct discharge and forfeiture of $50.00 per month for four months. The findings and sentence were upheld on review, except that a Navy board of review noted that prior convictions were improperly considered by the court and reduced the period of forfeitures to two months.
We note that the president of this court instructed the court under the failure to report charge on the elements of absence without leave. Further, there is evidence in the record under the specifications alleging willful dis-obedence of a lawful order which fairly raises as an alternative thereto the lesser included offense of failure to obey a lawful order. This failure, of the president to instruct the court properly on the elements of one of the offenses charged and on lesser included offenses properly raised under two other offenses is reversible error. Further proceedings are required.
The petition for review is granted, the decision of the board of review is affirmed in part and reversed in part and the case is remanded to The Judge Advocate General of the Navy for referral to a board of review for action not inconsistent with this opinion.
