United States v. Kingston 19 C.M.A. 7, 19 USCMA 7, 41 C.M.R. 7

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.

Quinn, Chief Judge

(dissenting):

The record indicates the accused absented himself when he received orders for duty in the Far East. He remained away for almost one year and a half. At trial, he admitted he “didn’t come back voluntarily.” He further admitted he knew “the elements of the offenses” to which he intended to plead guilty and that the decision to plead guilty had “originate [d] ” with him and his counsel and had resulted in a pretrial agreement with the convening authority as to the maximum sentence the latter would approve. The agreer *8ment indicates the accused had consulted with his lawyer in regard to the offenses which were listed in the agreement. There is no doubt in my mind, therefore, that the accused knew and understood the nature and the elements of the offenses to which he had pleaded guilty. United States v Gremillion, 18 USCMA 568, 40 CMR 280; United States v Graan, 18 USCMA 586, 40 CMR 298. I would affirm the decision of the board of review.