United States v. Kingston

Opinion of the Court Darden, Judge: The law officer’s inquiry into the providency of the accused’s plea of guilty to a charge of desertion, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885, is comparable to the inquiry made in United States v Care, 18 USCMA 535, 40 CMR 247. The accused, in mitigation, however, confesses to only unauthorized absence. His testimony, therefore, furnishes no support for the providence of his plea of guilty to desertion. Accordingly, the decision of the board of review is reversed. The record of trial is returned to the Judge Advocate General of the Navy. A rehearing may be ordered on the original charge or the Court of Military Review may reassess the sentence on the basis of a finding of guilty of the lesser included offense of absence without leave. Judge Ferguson concurs.