UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                          CAMPANELLA, FEBBO, and PENLAND
                               Appellate Military Judges

                             UNITED STATES, Appellee
                                         v.
                          Private E1 STEVEN M. TUCKER
                           United States Army, Appellant

                                     ARMY 20150634

         Headquarters, United States Army Cadet Command and Fort Knox
                         S. Charles Neill, Military Judge
              Colonel E. Edmond Bowen, Jr., Staff Judge Advocate

For Appellant: Colonel Mary J. Bradley, JA; Major Andres Vazquez, Jr., JA;
Captain Amanda R. McNeil Williams, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Cormac M. Smith, JA; Captain John Gardella, JA (on brief).


                                   28 October 2016

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                               OPINION OF THE COURT
                              ----------------------------------

CAMPANELLA, Senior Judge:

       In this case, we explore whether the military judge erred in accepting the
appellant’s plea to a general article violation for providing alcohol to a person under
the age of twenty-one, premised upon the mens rea of negligence. Finding no error,
we affirm. Because Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934
(2012) [hereinafter UCMJ], specifically criminalizes “disorders and neglects” that
are prejudicial to good order and discipline or which tend to discredit the service, we
find the Article 134, UCMJ, offense falls outside the Supreme Court’s decision in
United States v. Elonis, 135 S. Ct. 2001 (2015).

       A military judge, sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of conspiracy to obstruct justice, one
specification of sexual assault, two specifications of unlawfully providing alcohol to
a person under the age of twenty-one, and one specification of obstruction of justice
in violation of Articles 81, 120, and 134, UCMJ. The military judge sentenced
appellant to a bad-conduct discharge and confinement for forty-two months. In
accordance with a pretrial agreement, the convening authority approved only so much
TUCKER—ARMY 20150634

of the sentence as provided for a bad-conduct discharge and thirty-six months
confinement.

       Appellant’s case is before us for review pursuant to Article 66(c), UCMJ.
Appellant raises two assignments of error, one of which requires discussion but no
relief. Specifically, appellant avers his plea was improvident because, during the
providence inquiry, the military judge instructed on the mens rea of negligence,
when he should have instructed on the mens rea of recklessness, as it relates to the
Article 134, UCMJ offense of providing alcoholic beverages to persons under
twenty-one years of age. Appellant also raises matters personally pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) which, upon consideration, we find
have no merit.

                                  BACKGROUND

       In Specification 1 of Charge IV, appellant was charged with and pleaded
guilty to providing alcohol to Private (PV2) TG, a person under the age of twenty-
one. The specification alleged a general disorder under Article 134, UCMJ. During
the providence inquiry, appellant stated he gave alcohol to anyone at the party
without inquiring as to their age. 1 He also stated he knew some in the barracks
were under twenty-one years of age but he had no reason to believe PV2 TG was
under the age of twenty-one.

       Upon hearing this information, the military judge inquired into the
government’s theory of the case and asked defense counsel whether appellant was
provident to this specification. Trial counsel asserted that the Article 134, UCMJ,
specification was a general intent crime and hence, appellant’s plea was provident
based on his own description of his mental state. Defense counsel agreed with the
government that the Article 134 specification was a general intent crime and
appellant could be criminally liable for “deliberate ignorance” of PV2 TG’s age.

       With that, the military judge instructed appellant that “negligence is the lack
of that degree of care that a reasonably prudent person would have exercised under
the same or similar circumstances.” Appellant agreed he was negligent by
providing PV2 TG alcohol without ascertaining her age.

                             LAW AND DISCUSSION

      This court reviews a military judge’s decision to accept a plea for an abuse of
discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). It is an


1
 During the plea inquiry as to Specification 2 of Charge IV, alleging a similar
Article 134, UCMJ, violation by providing alcohol to PV2 TM, appellant
acknowledged he knew PV2 TM was under the age of twenty-one.
                                           2
TUCKER—ARMY 20150634

abuse of discretion for a military judge to accept a guilty plea without an adequate
factual basis to support it . . . [or] if the ruling is based on an erroneous view of the
law.” United States v. Weeks, 71 M.J. 44, 46 (C.A.A.F. 2012) (citation omitted).

       Appellant argues the military judge’s reliance on a negligence standard
renders his plea to Specification 1 of Charge IV improvident. Appellant, in reliance
on United States v. Elonis, 135 S. Ct. 2001 (2015), and United States v. Gifford, 75
M.J. 140 (C.A.A.F. 2016), asserts the language of Article 134, UCMJ omits a mens
rea element, and therefore, the appropriate mens rea standard is recklessness.
While the government concedes this point, we disagree, as we find Elonis and
Gifford inapplicable to the facts of this case.

     What mens rea applies to Article 134, UCMJ, is a question of law which we
review de novo. United States v. Serianne, 69 M.J. 8, 10 (C.A.A.F. 2010).

       In United States v. Elonis, the Supreme Court was faced with interpreting a
criminal statute, 18 U.S.C. § 875(c), that was silent on the mens rea required to
commit the offense. The Supreme Court emphasized that “[w]hen interpreting
federal criminal statutes that are silent on the required mental state, we read into
the statute only that mens rea which is necessary to separate wrongful conduct from
otherwise innocent conduct.” 135 S. Ct. at 2010 (quoting Carter v. United States,
530 U.S. 255, 269 (2000)) (internal quotation marks omitted). The Court concluded
that when a statute is silent in this regard, the mens rea required to commit the
offense must be greater than simple negligence. Elonis, 135 S. Ct. at 2010. 2

      In United States v. Gifford, the Court of Appeals for the Armed Forces
(CAAF) applied Elonis to a violation of a lawful general order, Article 92, UCMJ,
where the order failed to state any mens rea requirement and determined the
minimum mens rea is “recklessness.” 75 M.J. at 148 (C.A.A.F. 2015). Under this
mens rea standard as it applies to Article 92, UCMJ, lawful conduct, such as
providing alcohol to one’s friends or guests while honestly believing them to be of
legal age, would be excluded from proscription under the general order. The CAAF
decision, however, did not apply an analysis of the statutory language of Article
134 itself which proscribes “neglect[ful]” conduct. 3

      The Supreme Court’s decision in Elonis and the CAAF’s decision in Gifford are
predicated on the absence of a statutory mens rea requirement. The Supreme Court


2
 Thus the offenses of missing movement (Article 87, UCMJ) and improper
hazarding of vessel (Article 110, UCMJ) may be committed by simple negligence.
3
 Consistent with this statutory construct, the President has, for example, under his
Article 56 authority included the Article 134 offense of negligent homicide. See
U.S. v. Bivens, 49 M.J. 328 (C.A.A.F. 1998).
                                            3
TUCKER—ARMY 20150634

created a “gap-filling rule” for a mens rea requirement when an offense is otherwise
silent. Elonis, 135 S. Ct. at 2010-11. However, Article 134, UCMJ, is not silent, for
it specifically criminalizes “disorders and neglects” that are prejudicial to good order
and discipline, or which tend to discredit the service. UCMJ art. 134. For those
offenses where the crime clearly states a negligence standard, Elonis is inapplicable.

      In United States v. Rapert, our superior court determined Elonis was not
applicable to the offense of communicating a threat under Article 134, UCMJ, as
articulated by the President. 75 M.J.164 (C.A.A.F. 2015). While Elonis involved
communicating a threat, the military offense of communicating a threat contains an
element—absent in the federal offense—that the conduct be “wrongful.” Compare
18 U.S.C. § 875(c) with Manual for Courts-Martial, United States (2012 ed.)
[hereinafter MCM], pt. IV, ¶ 110.b. In Rapert, our superior court found the
requirement that the accused's acts be “wrongful” put the offense outside the
holding in Elonis. 75 M.J.at 168. Although Rapert did not discuss the statutory
language of Article 134, nothing in the court’s reasoning would preclude our
analysis here.

       In short, we find the offense of providing alcohol to a person under the age of
twenty-one under Article 134, UCMJ, falls outside the Supreme Court’s decision in
Elonis. Article 134, UCMJ, specifically criminalizes “disorders and neglects” that
are prejudicial to good order and discipline or which tend to discredit the service.
MCM, pt. IV, ¶ 60.c.(2). For those offenses where the statute clearly includes a
negligence standard, Elonis is inapplicable. Accordingly, we find the military judge
did not abuse his discretion in accepting appellant’s plea of guilty to Specification 1
of Charge IV.

                                   CONCLUSION

      The findings and sentence are AFFIRMED.

      Judge FEBBO and Judge PENLAND concur.


                                        FOR THE COURT:




                                        MALCOLM
                                        MALCOLM H.  H. SQUIRES,
                                                       SQUIRES, JR.
                                                                JR.
                                        Clerk
                                        Clerk of
                                              of Court
                                                 Court




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