UNITED STATES, Appellee 

v. 

Lazzaric T. CALDWELL, Private 

U.S. Marine Corps, Appellant 

No. 12-0353 

Crim. App. No. 201000557 

United States Court of Appeals for the Armed Forces 

Argued November 27, 2012 

Decided April 29, 2013 

BAKER, C.J., delivered the opinion of the Court, in which 

ERDMANN, J., and COX, S.J., joined. RYAN, J., filed a 

dissenting opinion in which STUCKY, J., joined. 

Counsel

For Appellant: Lieutenant Michael B. Hanzel, JAGC, USN 

(argued); Captain Michael Berry, USMC, and Captain Paul LeBlanc, 

JAGC, USN (on brief). 

For Appellee: Major David N. Roberts, USMC (argued); Colonel 

Stephen C. Newman, USMC, and Brian K. Keller, Esq. (on brief); 

Major Paul M. Ervasti, USMC. 

Military Judge: D. M. Jones 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Caldwell, No. 12-0353/MC 

2 

Chief Judge BAKER delivered the opinion of the Court. 

 A military judge sitting as a special court-martial 

convicted Appellant, pursuant to his pleas, of orders 

violations, larceny, and wrongful self-injury without intent to 

avoid service in violation of Articles 92, 121, and 134, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 921, and 934 

(2006). The military judge also convicted Appellant, contrary 

to his pleas, of a separate orders violation for wrongfully 

possessing “spice.” The convening authority approved 

Appellant’s sentence of confinement for 180 days and a badconduct discharge, but suspended certain portions of the 

confinement. 

A divided panel of the United States Navy–Marine Corps 

Court of Criminal Appeals (CCA) affirmed the bad-conduct 

discharge, but there was no consensus on whether to affirm 

Appellant’s sentence of confinement. United States v. Caldwell, 

No. NMCCA 201000557, 2011 WL 5547456 (N-M. Ct. Crim. App. Nov. 

15, 2011) (unpublished). Two judges disagreed over whether 

there was a sufficient factual basis to support Appellant’s plea 

to the self-injury offense, and the third judge found that the 

military judge was in no position to accept pleas of any kind 

prior to a board being convened under Rule for Courts–Martial 

(R.C.M.) 706. Compare Caldwell, 2011 WL 5547456, at *2, with

id. at *5-*6 (Beal, J., concurring in part), and id. at *10 
United States v. Caldwell, No. 12-0353/MC 

3 

(Maksym, J., dissenting). Upon sua sponte reconsideration en 

banc, the court affirmed Appellant’s convictions and sentence. 

United States v. Caldwell, 70 M.J. 630, 636 (N-M. Ct. Crim. App. 

2011) (en banc). Upon petition to this Court, we specified the 

following issue: 

WHETHER AS A MATTER OF LAW A BONA FIDE SUICIDE ATTEMPT IS 

PUNISHABLE AS SELF-INJURY UNDER ARTICLE 134. 

 For the reasons analyzed below, we conclude that there is a 

substantial basis in law and fact for questioning Appellant’s 

guilty plea. Appellant’s plea does not establish that his 

conduct was to the prejudice of good order and discipline in the 

armed forces, or of a nature to bring discredit upon the armed 

forces, and thus does not satisfy the elements of the offense. 

Because we find Appellant’s plea improvident, we need not 

address the more general and specified question as to whether 

and when a bona fide suicide attempt would satisfy the elements 

of an Article 134, UCMJ, offense. 

FACTS 

 At the time of the convictions, Appellant was a private in 

the United States Marine Corps serving in Okinawa, Japan. 

Regarding the wrongful self-injury charge, the CCA summarized 

the facts of the offense as follows: 

The appellant was alone in his barracks room, located in 

Camp Schwab, Okinawa, when he intentionally cut open his 

wrists with a razor blade, leaving a trail of blood on the 

barracks floor. Record at 88, 92, 96. At the time of his 
United States v. Caldwell, No. 12-0353/MC 

4 

self-injury, the appellant was in a highly distraught 

state having just learned that he was being ordered back 

into pretrial confinement. Gunnery Sergeant (GySgt) C, 

one of the staff noncommissioned officers in the 

appellant’s unit, informed the appellant he was going back 

to the brig and allowed the appellant the privacy to call 

his parents from his barracks room before processing the 

appellant for confinement. Moments later, GySgt C 

returned to the room and discovered the appellant in his 

injured state. Id. at 92-93, 96. GySgt C administered 

immediate first aid by wrapping socks around the 

appellant’s wounds and then called for the assistance of 

corpsmen, who responded with their medical kits. Id. at 

92-93. After the appellant received acute care for his 

self-inflicted injuries, he was kept for a day in the base 

hospital’s psychiatric ward for observation before being 

placed into pretrial confinement. Id. at 103. 

The undeveloped facts in this guilty plea indicate the 

self-injury was a genuine suicide attempt which was 

precipitated by the appellant receiving two pieces of bad 

news: 1) the death of a close friend who had just 

returned home after being discharged, and 2) his 

commanding officer was ordering him back into pretrial 

confinement. These two events constituted what the 

appellant considered the “last straw” in a recent series 

of emotional hardships which ranged from the deaths of 

several family members to a variety of personal problems 

the appellant was having in his unit. 

Another matter, which may have been a contributing factor 

leading to the appellant’s actions, was the fact that the 

appellant had been treated for depression, post-traumatic 

stress disorder, and an unspecified personality disorder. 

Id. at 94-95. Part of his treatment included a 

prescription to a number of medications, including 

“Zoloft.” Id. at 95. According to the appellant, the 

medications might have been the cause for seizures and 

brain hemorrhages which caused the appellant to stop 

taking his medication approximately two weeks before the 

self-injury. Id. Notwithstanding these issues, the 

appellant disavowed any severe mental disease or defect at 

the time of his offense. Id. at 97-98. Likewise, the 

appellant’s defense counsel, who had a long-standing 

relationship with the appellant as he had represented him 

on other legal assistance and military justice matters, 

was convinced that an inquiry into the appellant’s mental 
United States v. Caldwell, No. 12-0353/MC 

5 

responsibility or capacity was not warranted under RULE 

FOR COURTS-MARTIAL 706, MANUAL FOR COURTS-MARTIAL, UNITED 

STATES (2008 ed.). Id. at 97. 

Caldwell, 70 M.J. at 631-32 (footnote omitted). 

 During his Care inquiry, the military judge noted that the 

self-injury offense was an “odd charge” because “it’s basically 

criminalizing an attempted suicide.” See United States v. Care, 

18 C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969). The military 

judge asked if Appellant understood “why people would 

criminalize attempted suicide?” Appellant explained that his 

attempted suicide was criminalized because of the way it 

affected his unit: 

[A] lot of people were shocked. A lot of people didn’t 

know how to react towards it . . . . [s]o they would kind 

of talk to me a little bit and then back away. It was a 

touchy subject no one wanted to speak about. [I]t was 

just really weird for a couple weeks after that, sir. 

Appellant also stated that officers were “really mad” at him 

because it sent the message that: 

[B]asically I couldn’t handle what was going on, and they 

couldn’t help me at that point in time. So it makes them 

feel as if I can [not] really go to them and ask for help 

if they couldn’t save this Marine right here. 

Given these reactions, Appellant said that he had witnessed how 

his conduct was prejudicial to good order and discipline in the 

unit. Appellant also stated that his conduct was service 

discrediting because the public might look less favorably toward 

the Marine Corps and “[i]t would actually cause a badder [sic] 
United States v. Caldwell, No. 12-0353/MC 

6 

outlook on the superiors” because if exposed, the public “would 

look at them as not doing their job.” 

 In the first CCA decision, the divided court found that 

there was a substantial basis in fact to question the plea to 

self-injury, because Appellant’s “mere supposition of possible 

effects is insufficient to demonstrate prejudice to good order 

and discipline.” Caldwell, 2011 WL 5547456, at *2.1 In the 

later en banc decision, the CCA affirmed the Article 134, UCMJ, 

conviction under clause 1, applying to prejudice of good order 

and discipline. Caldwell, 70 M.J. at 632, 636. 

DISCUSSION 

 The issue before us involves the providence of Appellant’s 

guilty plea to the Article 134, UCMJ, offense. Before accepting 

a guilty plea, the military judge must conduct an inquiry to 

determine whether there is factual basis for the plea, the 

accused understands the plea and is entering it voluntarily, and 

the accused admits each element of the offense. United States 

v. Mitchell, 66 M.J. 176, 177-78 (C.A.A.F. 2008). This Court 

reviews a military judge’s decision to accept a guilty plea for 

an abuse of discretion. Id. at 178. We will not reject the 

plea unless there is “‘a “substantial basis” in law and fact for 

 

1

 Caldwell, 70 M.J. at 632 (“In our previous opinion, the court 

found that there was substantial basis in fact to question the 

plea to self-injury, i.e. there was not a factual basis in the 

record to support the terminal element.”). 
United States v. Caldwell, No. 12-0353/MC 

7 

questioning the guilty plea.’” United States v. Glenn, 66 M.J. 

64, 66 (C.A.A.F. 2008) (quoting United States v. Prater, 32 M.J. 

433, 436 (C.M.A. 1991)). 

 Article 134, UCMJ, criminalizes “all disorders and neglects 

to the prejudice of good order and discipline in the armed 

forces” and “all conduct of a nature to bring discredit upon the 

armed forces.” The Manual for Courts-Martial, United States

(MCM) prescribes two elements for self-injury without intent to 

avoid service: 

(1) That the accused intentionally inflicted injury upon 

himself or herself; 

(2) That, under the circumstances, the conduct of the 

accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

MCM pt. IV, para. 103a.b. The explanation to the MCM further 

states that the “circumstances and extent of the injury . . . 

are relevant to a determination that the accused’s conduct was 

prejudicial to good order and discipline, or servicediscrediting.” Id. at pt. IV, para. 103a.c.(1). 

Conduct Prejudicial to Good Order and Discipline

 Conduct that is prejudicial to good order and discipline is 

“conduct that causes a reasonably direct and palpable injury to 

good order and discipline.” United States v. Cendejas, 62 M.J. 

334, 340 (C.A.A.F. 2006) (citation omitted). The acts in 

question must be “directly prejudicial to good order and 
United States v. Caldwell, No. 12-0353/MC 

8 

discipline,” and not “prejudicial only in a remote or indirect 

sense.” MCM pt. IV, para. 60.c.(2)(a). 

This Court has held that an attempted suicide “may be a 

sufficient basis for a charge of intentional self-infliction of 

injury to the prejudice of good order and discipline.” United 

States v. Ramsey, 40 M.J. 71, 75 (C.M.A. 1994). In Ramsey, the 

accused, who was deployed to Saudi Arabia during Operation 

Desert Shield/Desert Storm, shot himself in the shoulder. Id.

at 72. Charged with intentionally injuring himself, the accused 

described his conduct as prejudicial to good order and 

discipline because: “I know for one thing it killed the morale 

of my unit. It also made them have to work a little harder to 

try [to] fill the position that I was supposed to be filling.” 

Id. at 74. The Government argues that Ramsey is on point; 

Appellant demurs. 

The parties also argue the relevance of United States v. 

Taylor, 17 C.M.A. 595, 38 C.M.R. 393 (1968). In Taylor, the 

accused, a confined inmate, “superficially slashed his arms with 

a razor blade in the presence of two cell mates, representing at 

the time that he wanted to outdo the performance of another 

inmate who had engaged in the same activity on an earlier 

occasion.” Id. at 596, 38 C.M.R. at 394. This Court found that 

the accused’s conduct had a direct adverse effect upon the good 

order and discipline of the command. Id. at 597, 38 C.M.R. at 
United States v. Caldwell, No. 12-0353/MC 

9 

395. Taylor was decided over a decade before PTSD was 

recognized in the DSM, Am. Psychiatric Ass’n, Diagnostic and 

Statistical Manual of Mental Disorders 236-37 (3d ed. 1980), and 

the Court did not analyze or consider whether or how a bona fide 

suicide attempt qualified as an Article 134, UCMJ, offense. 

 Neither case is controlling precedent in the context 

presented here. Rather, the key question is whether there is a 

substantial basis in law or fact to question Appellant’s plea to 

undermining good order and discipline. There is. The record is 

clear that Appellant engaged in a bona fide suicide attempt.2 

This is reflected in Appellant’s statement that he “made a 

conscious decision at that time that [he] did not want to live” 

when he attempted suicide by slitting his wrists. It also is 

reflected in the military judge’s statement that the self-injury 

offense was an “odd charge” because “it’s basically 

criminalizing an attempted suicide.” While Appellant’s actions 

were precipitated by the death of a friend and the prospect of 

going to the brig, he was not charged with avoiding a military 

duty (confinement in the brig) and he did not state or admit 

that he attempted to kill himself to avoid the brig. 

 

2

 A bona fide suicide attempt differs from a suicidal gesture. 

See Dep’t of the Navy, Judge Advocate General Instr. 5800.7F, 

Manual of the Judge Advocate General ch. II, pt. E., para. 0218 

c., at 2-36 (June 26, 2012). (“Self-inflicted injury, not 

prompted by a serious suicidal intent, is at most a suicidal 

gesture . . . .”). 
United States v. Caldwell, No. 12-0353/MC 

10 

 In this context, the CCA found that Appellant’s plea to the 

element of undermining good order and discipline was based on 

the following factors: 

By cutting himself, the appellant caused a disorder in the 

barracks. He needlessly exposed GySgt C to his bodily 

fluids and he caused corpsmen to respond with their medical 

kits, presumably expending medical supplies in the process. 

Furthermore, the appellant did not go into pretrial 

confinement as ordered by his commanding officer; instead, 

he was transported to the hospital where he received acute 

medical care followed by treatment in the psychiatric ward 

for one day. The appellant himself stated that the impact 

of his actions on his fellow Marines was palpable by the 

way they acted around him after he returned to the unit. 

Caldwell, 70 M.J. at 632. 

 These factors are insufficient to establish a reasonably 

direct and palpable injury to good order and discipline. Unlike 

the accused in Taylor, who “superficially slashed his arms with 

a razor blade in the presence of two cell mates,” 17 C.M.A. at 

596, 38 C.M.R. at 394, Appellant attempted suicide while alone 

in his barracks room. When the gunnery sergeant walked into the 

room, he reacted to the sight of blood in a competent and 

professional manner. The gunnery sergeant and medically trained 

corpsman administered first aid, as they would have in response 

to any other injury. The corpsmen acted as they were trained to 

do, and there was no evidence presented that any medical 

resources they used were needed elsewhere. Moreover, if the 

expenditure of medical resources alone undermined good order and 

discipline, then every bona fide suicide attempt requiring 
United States v. Caldwell, No. 12-0353/MC 

11 

medical attention would be per se prejudicial to good order and 

discipline and on that basis alone could be subject to 

prosecution. The brief delay in Appellant’s pretrial 

confinement for medical care and one day of treatment in the 

psychiatric ward might have been relevant if Appellant were 

charged with avoiding a military duty, but has no significant 

impact here. Finally, Appellant’s impression that members in 

the unit felt uneasy also does not provide a sufficient factual 

basis to establish a direct and palpable effect on good order 

and discipline. 

Conduct of a Nature to Bring Discredit on the Armed Forces

 Conduct of a nature to bring discredit on the armed forces 

must have “a tendency to bring the service into disrepute or 

which tends to lower it in the public esteem.” MCM pt. IV, 

para. 60.c.(3). This Court has relied on the prejudice to good 

order and discipline clause to establish the second element of 

the self-injury offense, rather than the service discrediting 

clause. See Ramsey, 40 M.J. at 75; Taylor, 17 C.M.A. at 597, 38 

C.M.R. 395. In the present case, the CCA also elected to affirm 

the Article 134, UCMJ, conviction on the basis of prejudice to 

good order and discipline. Caldwell, 70 M.J. at 632, 636. 

 In his guilty plea, Appellant posited that his conduct was 

service discrediting because the public might look less 

favorably toward the Marine Corps and “[i]t would actually cause 
United States v. Caldwell, No. 12-0353/MC 

12 

a badder [sic] outlook on the superiors” because if exposed, the 

public “would look at them as not doing their job.” Appellant’s 

speculation does not establish that his conduct had a tendency 

to bring the service into disrepute or to lower it in the public 

esteem. To the contrary, this statement indicates that in 

Appellant’s view it was not his actions that would cause 

discredit, but the failure of his unit’s leaders that would have 

a tendency to cause discredit.3

 If this alone were discrediting, 

then it would appear to be discrediting for the whistleblower to 

disclose fraud or the victim of an offense to report a crime by 

a member of the military. 

Here too, Appellant’s plea is not sufficient to demonstrate 

the element of discredit. The Government has not offered, and 

the Appellant has not admitted to facts that would make his 

conduct discrediting. Therefore, we need not determine whether, 

as a general matter, a bona fide suicide attempt alone may be 

service discrediting, or is more properly considered a 

noncriminal matter requiring treatment not prosecution. 

That is because, in this case, there is a substantial basis 

in fact and law to question Appellant’s plea and the military 

judge abused his discretion in accepting the plea. 

 

3

 We take judicial notice of the statement of the Secretary of 

Defense that: “[s]uicide prevention is first and foremost a 

leadership responsibility.” Memorandum from Sec’y of Defense to 

Sec’ys of the Military Dep’ts et al., Suicide Prevention for 

Department of Defense Personnel (May 10, 2012). 
United States v. Caldwell, No. 12-0353/MC 

13 

DECISION 

 The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is reversed as to Charge III and the 

specification thereunder and the sentence. The findings of 

guilty to Charge III and its specification are set aside. The 

remaining findings are affirmed. The record of trial is 

returned to the Judge Advocate General of the Navy for remand to 

the Court of Criminal Appeals. That court may either dismiss 

Charge III and its specification and reassess the sentence, or 

it may order a rehearing. 
United States v. Caldwell, 12-0353/MC 

 RYAN, Judge, with whom STUCKY, Judge, joins (dissenting): 

It is the prerogative of Congress, not this Court, to enact 

laws governing the armed forces, including those that define 

criminal offenses. U.S. Const. art. I, § 8, cl. 14. In Article 

134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934, 

Congress criminalized “all disorders and neglects to the 

prejudice of good order and discipline in the armed forces” and 

“all conduct of a nature to bring discredit upon the armed 

forces.” A suicide attempt may constitute self-injury without 

intent to avoid service and is conduct punishable under this 

article. See United States v. Ramsey, 40 M.J. 71, 75 (C.M.A. 

1994) (holding that “attempted suicide . . . may be a sufficient 

basis for a charge of intentional self-infliction of injury to 

the prejudice of good order and discipline”). While the 

convening authority’s decision to refer charges against 

Appellant in the instant case may well be unfair or ill advised, 

the wisdom of that decision is not within our jurisdiction to 

review. See United States v. Bell, 38 M.J. 358, 365, 370 

(C.M.A. 1993) (holding that the choice whether to exercise “the 

prosecution function . . . is plainly a matter of prosecutorial 

discretion, not judicial discretion,” and constitutes a choice 

over which “[w]e have no ombudsman’s override . . . however much 

we may agree or disagree with it”). 
United States v. Caldwell, 12-0353/MC 

2 

Nonetheless, the majority endeavors to distinguish a “bona 

fide suicide attempt” from a mere “suicidal gesture,” United 

States v. Caldwell, __ M.J. __ (9 n.2) (C.A.A.F. 2013), a 

distinction that is unsupported by the statutory elements of 

Article 134, UCMJ, or any of the elements of self-injury without 

intent to avoid service, as defined by the President.1 Neither 

Article 134, UCMJ, nor any element of the charged offense 

requires that the conduct be driven by a particular motive. Cf.

United States v. Wilson, 66 M.J. 39, 47 (C.A.A.F. 2008) 

(declining to “redraft Article 125, UCMJ,” to include a mistake 

of fact defense “that Congress might have added but did not”). 

Yet no one disagrees that the offense of self-injury without 

intent to avoid service is well within the scope of conduct made 

criminal by Article 134, UCMJ. 

While I question whether punishing either bona fide suicide 

attempts or suicidal gestures under Article 134, UCMJ, is wise 

or fair, that is a determination to be made by the President and 

 

1

 The Manual for Courts-Martial defines the elements of selfinjury without intent to avoid service: 

(1) That the accused intentionally inflicted injury upon 

himself or herself; 

(2) That, under the circumstances, the conduct of the 

accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

Manual for Courts-Martial, United States pt. IV, para. 103a.b. 

(2008 ed.) (MCM).
United States v. Caldwell, 12-0353/MC 

3 

Congress, not this Court. See United States v. Solis, 46 M.J. 

31, 35 (C.A.A.F. 1997) (“[P]olicy arguments . . . must be 

directed to Congress and the President for consideration, not to 

this Court.”). It is undoubtedly within the prerogative of the 

Secretary of Defense to take an official position that 

“[s]uicide prevention is first and foremost a leadership 

responsibility” and that commanders “cannot tolerate any actions 

that belittle, haze, humiliate, or ostracize any individual, 

especially those who require or are responsibly seeking 

professional services.” Memorandum from Sec’y of Defense to 

Sec’ys of the Military Departments et al., Suicide Prevention 

for Dep’t of Defense Personnel (May 10, 2012). 

However, the Secretary’s view on the appropriate balance 

between empathy and prosecution in deterring suicide attempts in 

the military does not bear on the altogether different question 

whether, as a matter law, a suicide attempt is punishable under 

Article 134, UCMJ. Until Congress or the President takes action 

with regard to the criminality of bona fide suicide attempts, 

this Court is bound to apply the law as it currently exists. 

Our role is not to create exceptions for certain conduct 

that the statute would otherwise plainly reach, but is merely to 

determine whether Appellant’s guilty plea was provident. 

Because I conclude that “the military judge obtained an adequate 

factual basis to support the plea and correctly applied the 
United States v. Caldwell, 12-0353/MC 

4 

law,” United States v. Inabinette, 66 M.J. 320, 321 (C.A.A.F. 

2008), one that we would find adequate in any other context, I 

respectfully dissent. 

A. 

As a threshold matter, however counterintuitive it seems to 

me, a suicide attempt that rises to the level of self-inflicting 

an injury is punishable conduct under Article 134, UCMJ. See

Ramsey, 40 M.J. at 75. Here, “Appellant’s attempted suicide was 

not the substantive crime he faced; rather, his attempt to kill 

himself was the basis for his crime of self-inflicting an injury 

to the prejudice of good order and discipline.” Id.

While ostensibly declining to address the issue “whether, 

as a general matter, a bona fide suicide attempt alone may be 

service discrediting, or is more properly considered a 

noncriminal matter requiring treatment not prosecution,” 

Caldwell, __ M.J. at __ (12), the majority effectively places 

“bona fide” suicide attempts beyond the reach of Article 134, 

UCMJ. In doing so, the majority claims that Ramsey, where the 

appellant shot himself in the shoulder while on deployment in 

Saudi Arabia, is not “controlling precedent,” id. at __ (9), 

because Ramsey was a “suicidal gesture,” as opposed to a bona

fide suicide, case. Caldwell, __ M.J. at __ (8-10 & n.2). At 

least three flaws undermine this reasoning. 
United States v. Caldwell, 12-0353/MC 

5 

First, the Court in Ramsey explicitly referred to the 

appellant’s conduct as an “attempted suicide” and an “attempt to 

kill himself.” 40 M.J. at 75. Not once did the Court refer to 

the appellant’s conduct as a “suicidal gesture” or intimate that 

the appellant’s conduct was merely a cry for help, or an attempt 

to avoid duty. 

Second, distinguishing the infliction of self-injury as a 

mere suicidal gesture from the infliction of self-injury as a 

bona fide suicide attempt is inconsistent with the elements of 

self-injury without intent to avoid service, which requires only 

that the accused intended to injure himself, and does not 

require that the accused intended the injury only as a 

“gesture.” See MCM pt. IV, para. 103a.b.(1). 

Third, as a practical matter, courts are ill equipped to 

discern whether the subjective impetus behind a servicemember’s 

self-inflicted injury was a genuine desire to kill oneself, the 

fact that distinguishes a “suicidal gesture,” which the majority 

suggests may be punishable, Caldwell, __ M.J. at __ (8-9), from 

a “bona fide” suicide attempt, which it suggests may not. Id. 

Such a determination is best left to mental health experts. 

See, e.g., Rule for Courts-Martial (R.C.M.) 706(c)(1) (requiring 

that, when a mental examination is ordered to determine mental 

capacity or mental responsibility, “the matter shall be referred 

to a board consisting of one or more persons,” each of whom 
United States v. Caldwell, 12-0353/MC 

6 

“shall be either a physician or a clinical psychologist” and one 

of whom must “be either a psychiatrist or a clinical 

psychologist”). 

B. 

The proper inquiry is whether Appellant’s guilty plea was 

provident. The purpose of Care’s providence inquiry is twofold: 

“the first is a judicial determination of the providence of the 

plea; and the second is a total transcript of the plea inquiry 

for the purpose of review.” United States v. Lanzer, 3 M.J. 60, 

62 (C.M.A. 1977) (interpreting United States v. Care, 18 C.M.A. 

535, 541, 40 C.M.R. 247, 253 (1969)). “The fundamental 

requirement of plea inquiry under Care and R.C.M. 910 involves a 

dialogue in which the military judge poses questions about the 

nature of the offense and the accused provides answers that 

describe his personal understanding of the criminality of his or 

her conduct.” United States v. Hartman, 69 M.J. 467, 469 

(C.A.A.F. 2011). 

It is well settled that “[o]nce a military judge has 

accepted an accused’s guilty pleas and entered findings of 

guilty, this Court will not set them aside unless we find a 

substantial basis in law or fact for questioning the plea.” 

United States v. Schweitzer, 68 M.J. 133, 137 (C.A.A.F. 2009) 

(citing Inabinette, 66 M.J. at 322). “A military judge’s 

decision to accept a guilty plea is reviewed for an abuse of 
United States v. Caldwell, 12-0353/MC 

7 

discretion.” Inabinette, 66 M.J. at 322. “A military judge 

abuses this discretion if he fails to obtain from the accused an 

adequate factual basis to support the plea -- an area in which 

we afford significant deference.” Id. Under this deferential 

standard, “[i]f Appellant’s providence inquiry established the 

facts necessary to support the elements of the [Article 134,] 

UCMJ offense charged, the plea to that charge is provident.” 

United States v. Holbrook, 66 M.J. 31, 32 (C.A.A.F. 2008) 

(citing United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 

1996)). 

Here, in pleading guilty to one specification of selfinjury, in violation of Article 134, UCMJ, Appellant’s 

providence inquiry had to establish facts sufficient to support 

two elements: “(1) [t]hat the accused intentionally inflicted 

injury upon himself or herself; [and] (2) [t]hat, under the 

circumstances, the conduct of the accused was to the prejudice 

of good order and discipline in the armed forces or was of a 

nature to bring discredit upon the armed forces.” MCM pt. IV, 

para. 103a.b. 

During the providence inquiry, the military judge asked 

Appellant about the first element: (1) “And you [cut your 

wrists with a razor blade] to intentionally injure yourself?” 

and (2) “It’s fair to say that you did this on purpose?” 

Appellant answered both questions in the affirmative. Appellant 
United States v. Caldwell, 12-0353/MC 

8 

confirmed that no one forced or coerced him to cut his wrists, 

and his decision was freely made. 

 “A military judge can presume, in the absence of contrary 

circumstances, that the accused is sane.” United States v. 

Riddle, 67 M.J. 335, 338 (C.A.A.F. 2009); but see Dep’t of the 

Navy, Judge Advocate General Instr. 5800.7F, Manual of the Judge 

Advocate General, ch. II, pt. E, para. 0218 c., at 2-36 (June 

20, 2007) (“In view of the strong human instinct for selfpreservation, suicide and a bona fide suicide attempt, as 

distinguished from a suicidal gesture, creates a strong 

inference of lack of mental responsibility.”). However, where, 

the accused’s statements or material in the record 

indicate a history of mental disease or defect on the 

part of the accused, the military judge must determine 

whether that information raises either a conflict with 

the plea and thus a possibility of a defense or only 

the ‘mere possibility’ of conflict. 

United States v. Riddle, 67 M.J. 335, 338 (C.A.A.F. 2009) 

(internal citation omitted). “The former requires further 

inquiry on the part of the military judge, the latter does not.” 

Id.

Here, the military judge explicitly asked defense counsel, 

“do you believe that there’s any M.R.E. 706 issues here?”2

 

Defense counsel replied that he “believe[d] that [Appellant] 

 

2

 The military judge’s reference to the Military Rules of 

Evidence was a misstatement. The correct MCM rule is R.C.M. 

706.
United States v. Caldwell, 12-0353/MC 

9 

knew what he was doing [when he cut his wrists], and he knew 

that what he was doing was wrong,” and “at present [Appellant] 

has the ability to understand our conversations and to 

adequately defend himself.” Moreover, Appellant stated that (1) 

he “made a conscious decision at th[e] time that [he] did not 

want to live,” (2) “it wasn’t just temporary insanity,” and (3) 

being off the medication that he was prescribed for his delayed 

posttraumatic stress disorder (PTSD), personality disorder, and 

depression did not give him a reason to inflict the injury on 

himself.3 

In light of defense counsel and Appellant’s statements, 

coupled with the presumption of sanity, the military judge 

reasonably weighed the evidence in determining that further 

inquiry under R.C.M. 706 was not required. See also Riddle, 67 

M.J. at 339 (holding that the appellant’s guilty plea was 

provident, despite her bipolar diagnosis, where the military 

judge (1) “specifically asked her about her mental 

responsibility at the time the offenses were committed, ensuring 

that at the time of her offenses she understood both what she 

 

3

 Despite the majority’s contention to the contrary, Caldwell, __ 

M.J. at __ (9), the recognition of PTSD in the DSM, Am. 

Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental 

Disorders 463-68 (4th ed. 2000) (text rev.), does not go to 

whether bona fide suicide attempts are punishable under Article 

134, UCMJ. And, while a PTSD diagnosis may raise a defense in 

certain circumstances, for the reasons discussed above, it did 

not do so here.
United States v. Caldwell, 12-0353/MC 

10 

was doing and the difference between right and wrong”; and (2) 

found “that she appeared to ‘completely understand the nature 

and quality of the[] proceedings’”). 

In light of the above, the record clearly establishes a 

sufficient factual basis to support the first element of selfinjury -- that he intentionally inflicted injury upon himself. 

As to the second element, Appellant’s guilty plea is 

provident if there is a sufficient factual basis for either 

clause 1 or clause 2 of the terminal element. In the course of 

the providence inquiry, Appellant admitted that his conduct, 

under the circumstances, was both prejudicial to good order and 

discipline and service discrediting.4

“Conduct prejudicial to good order and discipline is 

conduct that causes a reasonably direct and palpable injury to 

good order and discipline.” United States v. Cendejas, 62 M.J. 

334, 340 (C.A.A.F. 2006). Here, the facts elicited from 

Appellant were that he cut open his wrists in his barracks room, 

where he was found by one of his staff noncommissioned officers 

(SNCOs), who had to wrap socks around Appellant’s wrists to try 

to stop the bleeding and call for medical help. Appellant was 

 

4

 Appellant stipulated to the following: “That, under the 

circumstances, the conduct was to the prejudice of good order 

and discipline in the armed forces or was of a nature to bring 

discredit upon the armed forces.”
United States v. Caldwell, 12-0353/MC 

11 

then hospitalized.5 According to Appellant, (1) his conduct 

“affected the rest of the unit,” and when he came back “a lot of 

people were shocked [and] didn’t know how to react”; (2) his 

actions made his SNCOs and officers feel as if “they couldn’t 

help [him]”; and (3) other servicemembers would wonder if they 

could “really go to [the command] and ask for help if [the 

command] couldn’t save [Appellant].”6 In light of the above, 

 

5

 In the context of a self-injury charge “[t]he circumstances and 

extent of the injury . . . are relevant to a determination that 

the accused’s conduct was prejudicial to good order and 

discipline, or service-discrediting.” MCM pt. IV, para. 

103a.c.(1).

6

 The majority concludes that the “expenditure of medical 

resources alone” cannot undermine good order and discipline in 

this case, because “then every bona fide suicide attempt 

requiring medical attention would be per se prejudicial to good 

order and discipline.” Caldwell, __ M.J. at __ (10-11). Even 

assuming that the majority is correct in its unsupported 

assertion that, absent evidence that the medical resources were 

needed elsewhere, the expenditure of medical resources -- 

including the response of servicemembers serving as emergency 

medical personnel -- does not undermine good order and 

discipline, id., Appellant’s plea remains provident. During the 

plea colloquy, Appellant described his conduct as: (1) 

affecting unit morale; (2) engendering a feeling of failure 

among his SNCOs and officers; and (3) risking an erosion of 

servicemembers’ confidence in their commanders. Under our case 

law, these facts provide a more-than-adequate basis to support 

Appellant’s plea. See, e.g., United States v. Phillips, 70 M.J. 

161, 163 (C.A.A.F. 2011) (holding that to establish a violation 

under clause 2 of Article 134, UCMJ, “evidence that the public 

was actually aware of the conduct is not necessarily required”); 

United States v. Green, 68 M.J. 266, 270 (C.A.A.F. 2010) 

(holding that the appellant’s conviction of indecent language 

under Article 134, UCMJ, for uttering the sound “mmmm-mmmmmmmm,” was legally sufficient); United States v. Vaughan, 58 

M.J. 29, 36 n.7 (C.A.A.F. 2003) (finding the appellant’s guilty 

plea provident where the military judge asked the accused if she 

“agree[d] that if somebody out there heard about this . . . they 
United States v. Caldwell, 12-0353/MC 

12 

Appellant’s guilty plea provided a sufficient factual basis 

under our case law for finding a “direct and palpable” effect on 

good order and discipline. Cendejas, 62 M.J. at 340. See,

e.g., United States v. Erickson, 61 M.J. 230, 232-33 (C.A.A.F. 

2005) (finding that conduct that undermined an appellant’s 

capability and readiness to perform military duties had a direct 

and palpable effect on good order and discipline); United States 

v. Irvin, 60 M.J. 23, 24-26 (C.A.A.F. 2004) (finding a 

sufficient factual basis to support clause 1 and clause 2 of 

Article 134’s terminal element where the appellant admitted that 

he had possessed child pornography but there was no evidence 

that any other servicemembers were aware of, or saw the 

depictions). 

In addition, Appellant pleaded to facts that demonstrate 

his belief that his conduct was service discrediting. To be 

service discrediting, Appellant’s conduct must “tend to bring 

the service into disrepute if it were known.” United States v. 

 

would look down upon an Air Force member leaving their child 

unaccompanied . . . for that lengthy a period of time” and the 

accused responded, “Yes, ma’am”); United States v. Schumann, No. 

ACM 35119, 2004 CCA LEXIS 167, at *8, 2004 WL 1724818, at *3 

(A.F. Ct. Crim. App. July 29, 2004) (finding a guilty plea 

provident where the appellant: (1) stipulated that his “failure 

to place or maintain funds in his account was . . . to the 

prejudice of good order and discipline in the armed forces, and 

was of a nature to bring discredit upon the armed forces”; and 

(2) simply replied “Yes, Your Honor” when the military judge 

asked whether his conduct was service discrediting and would 

tend to lessen the esteem that the public had for the military), 

petition denied, 60 M.J. 430 (C.A.A.F. 2004).
United States v. Caldwell, 12-0353/MC 

13 

Phillips, 70 M.J. 161, 166 (C.A.A.F. 2011). Evidence “that 

anyone witnessed or became aware of the conduct,” has been held 

to be merely one factor to consider. Id. As a general matter, 

we have required that an accused need only explain how his 

conduct would negatively impact public opinion in theory, not 

that his conduct has, in fact, had a negative impact on public 

opinion. See, e.g., United States v. Roderick, 62 M.J. 425, 428 

(C.A.A.F. 2006) (finding that the appellant’s guilty plea to 

clause 2 of the terminal element was provident where he 

“admitted that his actions . . . ‘may lower the service in 

public esteem’ if people became aware of what he was doing”). 

Here, when asked what the public would think about Marines 

attempting suicide, Appellant stated that the public would think 

“bad thoughts about [the] whole command.” Appellant also 

observed that if his predicament made the news, the public would 

view his supervisors as not having done their jobs, even though 

Appellant had never told his supervisors about his depression. 

The majority contends that these facts demonstrate that the 

command’s conduct, not Appellant’s conduct, was service 

discrediting, despite Appellant’s statement that his command 

“knew nothing of [his depression].” Caldwell, __ M.J. at __ 

(12). While it is certainly reasonable to disagree as to 

whether particular conduct is or is not service discrediting, it 

is not reasonable to say that the military judge abused his 
United States v. Caldwell, 12-0353/MC 

14 

discretion in accepting this plea. Where, as here, Appellant 

sought no help from the command, any negative perception of the 

command’s failure to help could reasonably derive from the 

Appellant’s decision to attempt suicide by intentionally cutting 

his wrists instead of seeking help from his command. By not 

reaching out to his command for help, Appellant precluded the 

command’s help. Thus, it is Appellant’s conduct, not the 

command’s conduct, which forms the basis of the public’s 

potentially negative view of the military in light of these 

events -- a fact that Appellant recognized and admitted. The 

majority ignores the purpose of the Care inquiry, and 

Appellant’s own express words as to why he felt his conduct was 

service discrediting, obfuscating the issue and flipping the 

genesis of the “act” that is potentially service discrediting to 

protect hypothetical whistleblowers and victims, despite the 

nonexistence of an enumerated Article 134, UCMJ, offense 

proscribing such conduct. 

Accordingly, because the factual circumstances as revealed 

and admitted to by Appellant objectively support the plea as to 

each element of self-injury in violation of Article 134, UCMJ, 

the military judge did not abuse his discretion in accepting 

Appellant’s guilty plea to this offense as provident under the 

ordinary standards employed to review this issue. Whether to 

subject a particular Article 134, UCMJ, guilty plea to 
United States v. Caldwell, 12-0353/MC 

15 

heightened scrutiny cannot hinge on this Court’s diagnosis that 

the conduct at issue is a “matter requiring treatment,” 

Caldwell, __ M.J. at __ (12), rather than a crime -- many of our 

cases, including this one, are both. I question whether the 

majority’s approach will prevail in other contexts where the 

offense is one they deem more suitable for prosecution, even 

though that is not a matter within our purview, but is one 

committed to the convening authority’s discretion. R.C.M. 601. 

C. 

I would affirm the decision of the Navy-Marine Corps Court 

of Criminal Appeals.