UNITED STATES, Appellee 

v. 

Tom K. HOLBROOK, Seaman 

U.S. Coast Guard, Appellant 

 No. 07-0350 

Crim. App. No. 1251 

United States Court of Appeals for the Armed Forces 

Argued January 8, 2008 

Decided February 14, 2008 

RYAN, J., delivered the opinion of the Court, in which EFFRON, 

C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined. 

Counsel

For Appellant: Lieutenant Commander Necia L. Chambliss

(argued); Lieutenant Lynn R. S. Capuano. 

For Appellee: Lieutenant Commander Patrick M. Flynn (argued). 

Military Judge: Steven J. Andersen 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Holbrook, No. 07-0350/CG 

2

Judge RYAN delivered the opinion of the Court. 

A special court-martial composed of a military judge sitting 

alone convicted Appellant, pursuant to his pleas, of fraudulent 

enlistment, making a false official statement, damage to 

military property, reckless driving, use of marijuana, use, 

introduction, and distribution of cocaine, leaving the scene of 

an accident, and communicating a threat in violation of Articles 

83, 107, 108, 111, 112a, and 134, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. §§ 883, 907, 908, 911, 912a, 934 

(2000). The sentence adjudged by the court-martial included a 

bad-conduct discharge, confinement for eleven months, and 

reduction to the lowest enlisted grade. The convening authority 

approved the findings and sentence, but agreed to suspend 

confinement in excess of ten months until the date of 

Appellant’s release from confinement. The United States Coast 

Guard Court of Criminal Appeals (CCA) set aside the findings of 

guilty to the leaving the scene of an accident specification and 

affirmed the remaining findings of guilty. United States v. 

Holbrook, 64 M.J. 553, 558 (C.G. Ct. Crim. App. 2007). As a 

remedy for Appellant’s failure to receive speedy review of his 

case, the CCA only approved a reduction in grade to E-2. Id. 

On Appellant’s petition, we granted review of: 

WHETHER APPELLANT’S PLEA TO FRAUDULENT ENLISTMENT 

(CHARGE I) WAS IMPROVIDENT BECAUSE THE MILITARY JUDGE 

FAILED TO ELICIT FACTS SUFFICIENT TO ESTABLISH THAT 
United States v. Holbrook, No. 07-0350/CG 

3

APPELLANT KNEW HE LIED ABOUT A MATERIAL FACT RELEVANT 

TO HIS QUALIFICATIONS FOR ENLISTMENT.1 

I. Facts 

 The specification alleged that Appellant made: 

knowingly false representations that he had 

experimented with marijuana, a controlled substance, 

and that he did not use any other drugs, when in fact, 

he used marijuana frequently, used methamphetamines 2 

to 3 times a week for 2 months, and spent 2 months in 

drug rehabilitation for methamphetamine addiction, 

procure himself to be enlisted as a Seamen Recruit in 

the Coast Guard Delayed Entry Program, and did 

thereafter, receive pay and allowances under the 

enlistment so procured. 

Appellant stipulated to the above facts, and also that he 

executed various enlistment documents, including a 

questionnaire, DD Form 1966. Consistent with the charged 

specification, Appellant further stipulated, inter alia, that he 

knowingly misrepresented on DD Form 1966 that he had 

“experimented with marijuana, but no other drugs.” In fact, 

Appellant had used marijuana extensively, had been a heavy user 

of methamphetamines, and had spent two months in a drug 

rehabilitation facility. The providence inquiry supported each 

of these facts, without contradiction. 

II. Discussion

Appellant argues that his guilty plea to fraudulent 

enlistment was nonetheless not provident because the military 

judge failed to establish that Appellant knew that the facts he 

 

1

 65 M.J. 323 (C.A.A.F. 2007). 
United States v. Holbrook, No. 07-0350/CG 

4

misrepresented were “material” to his enlistment at the time he 

made them. The question for us is whether that knowledge was 

necessary for Appellant’s plea to have been provident in this 

case. We hold that it was not. 

A. 

To reject a guilty plea, the trial record must show “a 

‘substantial basis’ in law and fact for questioning the guilty 

plea.” United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991). 

Review of the statutory elements required to establish an 

offense is a question of law we undertake de novo. Cf. United 

States v. Garcia, 44 M.J. 496, 497 (C.A.A.F. 1996). If 

Appellant’s providence inquiry established the facts necessary 

to support the elements of the UCMJ offense charged, the plea to 

that charge is provident. United States v. Faircloth, 45 M.J. 

172, 174 (C.A.A.F. 1996). 

The text of Article 83, UCMJ, states, inter alia, that 

“[a]ny person who . . . procures his own enlistment or 

appointment in the armed forces by knowingly false 

representation or deliberate concealment as to his 

qualifications for that enlistment or appointment and receives 

pay or allowances thereunder . . . shall be punished as a courtmartial may direct.” The elements of the offense, as listed by 

the President, are: 
United States v. Holbrook, No. 07-0350/CG 

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(a) That the accused was enlisted . . . in an armed 

force; 

(b) That the accused knowingly misrepresented or 

deliberately concealed a certain material fact or 

facts regarding qualifications of the accused for 

enlistment . . . ; 

(c) That the accused’s enlistment was obtained or 

procured by that knowingly false representation or 

deliberate concealment; and 

(d) That under this enlistment . . . that accused 

received pay or allowances or both. 

Manual for Courts-Martial, United States pt. IV, para. 7.b.(1) 

(2005 ed.) (MCM). 

Both the statute and MCM provide that a misrepresentation 

needs to be knowing, and concealment deliberate. But we see no 

requirement within either the text of Article 83, UCMJ, or the 

elements set forth in the MCM that the accused actually know 

anything other than that his answers to questions regarding his 

qualifications are untruthful by commission or omission. The 

question whether a fact is “regarding qualifications” for 

“enlistment,” and “material,” is analyzed from the perspective 

of the service making the decision on the enlistment, not from 

the perspective of the untruthful applicant.2

 See, e.g., United 

 

2 Of course, not every fact regarding a qualification for 

enlistment may be material. The President’s addition of the 

adjective “material” in MCM pt. IV, para. 7.b.(1) limits the 

scope of actionable untruths regarding qualifications for 

enlistment. In determining whether a statement is material to 

qualifications for enlistment, we look at what the 

misrepresentation concealed and what qualities the service 
United States v. Holbrook, No. 07-0350/CG 

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States v. Gaudin, 515 U.S. 506, 512 (1995) (describing 

materiality under 18 U.S.C. § 1001 as requiring a finding that 

the accused made a statement to a listener who was attempting to 

make a decision based on that statement); cf. United States v. 

Loyd, 7 C.M.R. 453, 454 (N.B.R. 1953) (holding that an Article 

83, UCMJ, conviction cannot be sustained unless the government 

shows that but for the fraudulent statement the accused would 

not have been permitted to enlist). 

No authority supports the contrary argument, which makes 

criminal liability turn on whether the untruthful applicant to 

the armed forces knows that the truth might preclude his 

enlistment. We agree with the lower court that it would be 

irrational to require that an applicant fully understand the 

consequences of a truthful statement because it would mean 

prospective enlistees would need to possess thorough knowledge 

of the service’s enlistment standards and policies prior to 

applying for and entering active duty. Holbrook, 64 M.J. at 

556. 

 B. 

It is undisputed that Appellant’s providence inquiry 

established that he was enlisted in the armed forces, received 

 

sought to assess in determining fitness for duty. Gaudin, 515 

U.S. at 512. The threshold is low, as a material statement is 

one that need only have a tendency to influence the decisionmaking body to which it is addressed. Id. at 509. 
United States v. Holbrook, No. 07-0350/CG 

7

pay and allowances, knowingly misrepresented the extent of his 

preservice drug use, and that such prior drug use is relevant to 

qualification for enlistment in the Coast Guard -- i.e., 

material. Appellant’s providence inquiry established both every 

element of an Article 83, UCMJ, offense and the facts alleged in 

the specification. Any prevarication during the providence 

inquiry regarding the timing of Appellant’s knowledge of the 

materiality of his misrepresentations did not raise a 

substantial basis in law and fact for questioning his guilty 

plea to a violation of Article 83, UCMJ. 

III. Decision

The decision of the United States Coast Guard Court of 

Criminal Appeals is affirmed.