This opinion is subject to revision before publication 

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________ 

UNITED STATES 

Appellee 

v. 

Steven M. TUCKER, Private 

United States Army, Appellant 

No. 17-0160 

Crim. App. No. 20150634 

Argued May 10, 2017—Decided May 23, 2017 

Military Judge: S. Charles Neill 

For Appellant: Captain Timothy G. Burroughs (argued); 

Lieutenant Colonel Charles D. Lozano, Major Christopher 

D. Coleman, and Captain Patrick J. Scudieri (on brief); 

Lieutenant Colonel Melissa R. Covolesky. 

For Appellee: Captain John Gardella (argued); Colonel 

Mark H. Sydenham, Lieutenant Colonel A. G. Courie III, 

and Major Cormac M. Smith (on brief). 

_______________

PER CURIAM: 

Appellant was charged with, among other offenses, two 

specifications of unlawfully providing alcohol to a person 

under the age of twenty-one in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 

(2012). In the course of Appellant pleading guilty to these 

two specifications, the military judge instructed Appellant 

that the necessary mens rea requirement for this Article 

134, UCMJ, offense was “negligence.” After concluding that 

Appellant’s guilty plea was provident and convicting him of 

these two alcohol-related specifications (plus one specification of conspiracy to obstruct justice, one specification of 

sexual assault, and one specification of obstruction of justice 

in violation of Articles 81, 120, and 134, UCMJ, 10 U.S.C. §§ 

881, 920, 934 (2012)), the military judge sentenced Appellant to be confined for forty-two months and to be discharged 

from the service with a bad-conduct discharge (BCD). The 

convening authority approved only so much of the adjudged 
United States v. Tucker, No. 17-0160/AR 

Per Curiam 

2 

sentence as provided for thirty-six months of confinement 

and a BCD. 

On appeal to the United States Army Court of Criminal 

Appeals (CCA), Appellant challenged the military judge’s 

acceptance of his guilty plea. He argued that “recklessness” 

rather than “negligence” was the necessary mens rea requirement for the two Article 134, UCMJ, specifications at 

issue. The CCA disagreed, holding that because Article 134, 

UCMJ, “specifically criminalizes ‘disorders and neglects’ ... 

the statute clearly includes a negligence standard.” United 

States v. Tucker, 75 M.J. 872, 875 (A. Ct. Crim. App. 2016). 

In other words, the CCA equated the statute’s inclusion of 

the term “neglects” with the imposition of a “negligence” 

mens rea requirement. The CCA further held that because 

this mens rea requirement was specifically included in Article 134, UCMJ, and because the Supreme Court’s decision in 

Elonis v. United States, 135 S. Ct. 2001 (2015) was “predicated on the absence of a statutory mens rea requirement,” 

Elonis was not relevant to the disposition of the instant 

case. Tucker, 75 M.J. at 875. 

This Court granted Appellant’s petition for grant of review on the following issue: 

Whether the Army Court erred in holding that 

the term “disorders and neglects” states a negligence standard for mental culpability under 

Article 134, UCMJ, which precludes application of [Elonis v. United States]. 

As a first step in statutory construction, we are obligated 

to engage in a “plain language” analysis of the relevant statute. United States v. Schell, 72 M.J. 339, 343 (C.A.A.F. 2013) 

(internal quotation marks omitted) (citations omitted); see 

EV v. United States, 75 M.J. 331, 333 (C.A.A.F. 2016) 

(“‘[W]hen the statute’s language is plain, the sole function of 

the courts—at least where the disposition required by the 

text is not absurd—is to enforce it according to its terms.’”) 

(citations omitted)); see also United States v. Phillips, 70 

M.J. 161, 165 (C.A.A.F. 2011) (“In deciphering the meaning 

of a statute, we normally apply the common and ordinary 

understanding of the words in the statute.”) (citation omitted)). In taking this step in the instant case, we conclude 

that in Article 134, UCMJ, the term “neglects” simply refers 
United States v. Tucker, No. 17-0160/AR 

Per Curiam 

3 

to the failure of a servicemember to perform an act that it 

was his or her duty to perform. See Ballentine’s Law Dictionary 839 (3d ed. 1969). Stated differently, contrary to the 

holding of the CCA, we conclude that the term “neglects” has 

no connection to the mens rea requirement that the government must prove under the statute. See J. W. Cecil Turner, 

Kenny’s Outlines of Criminal Law 108 n.1 (16th ed. 1952) 

(“‘Neglect’ is not the same thing as ‘negligence.’ In the present connection the word ‘neglect’ indicates, as a purely objective fact, that a person has not done that which it was his 

[or her] duty to do; it does not indicate the reason for this 

failure.... A [person] can ‘neglect’ his [or her] duty either intentionally or negligently.”). 

Because this plain language analysis of the relevant provision of Article 134, UCMJ, is dispositive of the issue before 

us, and because we conclude that the CCA was mistaken in 

its analysis of this pivotal issue, the decision of the United 

States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the 

Army for remand to the Court of Criminal Appeals for a new 

review under Article 66, UCMJ, 10 U.S.C. § 866 (2012), to 

evaluate this case in light of Elonis v. United States, 135 S. 

Ct. 2001 (2015), and United States v. Haverty, 76 M.J. 199 

(C.A.A.F. 2017).