UNITED STATES, Appellee v. PHILLIP MORRIS, Private, U. S. Marine Corps, Appellant, 14 C.M.A. 446

Opinion of the Court PER CURIAM: The accused was convicted of unauthorized absence and communicating a threat, in violation of Articles 86 and 134, Uniform Code of Military Justice, 10 USC §§ 886 and 934, respectively. On review the board of review concluded that the accused was prejudiced as to the

Article 134 offense by the absence of an instruction on the lesser offense of using provoking words and gestures. See United States v Hazard, 8 USCMA 530, 25 CMR 34. On this appeal the accused contends the board of review erred by affirming the lesser offense instead of directing a rehearing. For the reasons set out in United States v Patterson, 14 USCMA 441, 34 CMR 221, the decision of the board of review is affirmed.