This opinion is subject to revision before publication.

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Jeremy J. STRADTMANN, Master Sergeant

United States Air Force, Appellant

No. 23-0223

Crim. App. No. 40237

Argued February 7, 2024—Decided May 20, 2024

Military Judges: Jefferson B. Brown (arraignment),

Jennifer J. Raab (motions), Bryon T. Gleisner (trial),

and Charles G. Warren (entry of judgment)

For Appellant: Major Jarett Merk (argued); Megan 

P. Marinos, Esq. 

For Appellee: Captain Jocelyn Q. Wright (argued); 

Colonel Matthew D. Talcott, Lieutenant Colonel 

James P. Ferrell, and Mary Ellen Payne, Esq. (on 

brief).

Chief Judge OHLSON delivered the opinion of the 

Court, in which Judge SPARKS, Judge MAGGS,

Judge HARDY, and Judge JOHNSON joined. Judge 

SPARKS filed a separate concurring opinion.

_______________
United States v. Stradtmann, No. 23-0223/AF

Opinion of the Court

2

Chief Judge OHLSON delivered the opinion of the 

Court.

In this case, we reject Appellant’s argument that recklessness is the requisite mens rea to sustain a conviction 

for a presidentially promulgated offense of “child endangerment” under Article 134, Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. § 934 (2012). Rather, we hold that the 

President, through the presidentially promulgated elements found in Part IV of the Manual for Courts-Martial, 

United States (MCM), had the authority to designate culpable negligence as the requisite mens rea for the offense.

We therefore affirm the decision of the United States Air 

Force Court of Criminal Appeals (CCA). 

I. Background

Over the course of several years, Appellant assaulted 

his wife, AS, on numerous occasions. As relevant to the instant appeal, in December of 2016,x Appellant struck AS 

and knocked her to the ground while Appellant was holding his thirteen-month-old daughter, MS. In April of 2017, 

Appellant threatened AS while MS, now seventeen months 

old, was present. And in June of 2017, Appellant once again 

threatened to injure AS while MS was present. 

In March of 2019, AS reported the abuse to Air Force 

Security Forces. Appellant subsequently was charged with

three specifications of child endangerment in violation of 

Article 134, as well as a multitude of other offenses. In relevant part, the child endangerment specifications alleged 

that Appellant “had a duty for the care of M.S., a child under the age of 16 years, and did endanger the mental health 

of M.S. and that [the specified wrongful conduct of Appellant] constituted culpable negligence.”

During the court-martial proceedings, trial defense 

counsel moved to dismiss the three specifications of child 

endangerment for failure to state an offense, arguing that 

the Supreme Court’s decision in Elonis v. United States, 

575 U.S. 723 (2015), as well as the precedent of this Court,

mandated a minimum mens rea of recklessness, not culpable negligence as alleged in the specifications. In her 
United States v. Stradtmann, No. 23-0223/AF

Opinion of the Court

3

analysis denying the defense’s request, the motions judge 

“decline[d] to apply a different mens rea—recklessness—to 

an enumerated offense under Article 134, UCMJ, where 

the presidentially promulgated offense of child endangerment includes a specific mens rea which is supported 

by . . . case law.” Citing this Court’s application of Elonis in 

United States v. Haverty, 76 M.J. 199 (C.A.A.F. 2017), and 

United States v. Tucker, 78 M.J. 183 (C.A.A.F. 2018), the 

motions judge held that “the plain language of the statute 

in effect at the time [of the offense],” coupled with “the implied intent of Congress,” established that culpable negligence was the “appropriate” mens rea for child endangerment under the general article, Article 134.

Before a different military judge sitting as a general 

court-martial, Appellant subsequently pleaded guilty to,

and was convicted of, all three specifications of child endangerment under Article 134.1 During Appellant’s Care2

inquiry, Appellant consistently stated that he believed he 

acted with “culpable negligence” because he had “a duty to

care for [his] daughter’s well-being” and his actions “could 

have foreseeably damaged her mental health.” The trial 

military judge sentenced Appellant to a bad-conduct discharge, fifty-four months of confinement, and reduction to 

E-4. On appeal to the CCA, Appellant raised the issue of 

whether the child endangerment specifications “fail to 

state an offense such that the military judge abused his 

discretion by accepting Appellant’s guilty pleas” because 

1 Appellant also pleaded guilty to and was convicted of three 

specifications of simple assault in violation of Article 128, 

UCMJ, 10 U.S.C. § 928 (2012), one specification of assault consummated by a battery on divers occasions in violation of Article 

128, and three specifications of wrongfully communicating 

threats in violation of Article 134. Contrary to his pleas, the military judge also found Appellant guilty of two specifications of 

simple assault, three specifications of assault consummated by 

a battery, and one specification of assault consummated by a 

battery on a child under the age of sixteen years in violation of 

Article 128.

2 United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969).
United States v. Stradtmann, No. 23-0223/AF

Opinion of the Court

4

the offense required recklessness, not culpable negligence, 

as the minimum mens rea. United States v. Stradtmann,

No. ACM 40237, 2023 CCA LEXIS 238, at *2, 2023 WL 

3813499, at *1 (A.F. Ct. Crim. App. May 30, 2023) (unpublished). The CCA stated that, after carefully considering the issue, they found “it require[d] neither discussion 

nor relief.” Id. at *3, 2023 WL 3813499, at *1. This Court

granted review to consider “[w]hether recklessness is the 

requisite mens rea to sustain a conviction for the presidentially promulgated offense of child endangerment under 

Article 134, UCMJ of the 2016 Manual for Courts-Martial.” 

United States v. Stradtmann, 83 M.J. 468 (C.A.A.F. 2023) 

(order granting review).

II. Standard of Review

“The mens rea applicable to an offense is an issue of 

statutory construction” which this Court reviews de novo. 

United States v. McDonald, 78 M.J. 376, 378 (C.A.A.F. 

2019).

III. Applicable Law

A. Child Endangerment Under the UCMJ

At the time of the charged conduct, child endangerment 

was a presidentially promulgated offense under Article 

134.3 The MCM stated that “[c]hild neglect was recognized 

in United States v. Vaughan, 58 M.J. 29 (C.A.A.F. 2003). It 

is based on military custom and regulation as well as a majority of state statutes and captures the essence of child 

3 After Appellant committed the charged conduct, Congress 

moved child endangerment from an enumerated Article 134 offense to a standalone offense under Article 119b. See National 

Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 

114-328, § 5429, 130 Stat. 2000, 2949 (2016). Although the terminal element was deleted, Article 119b included the other presidentially enumerated elements, an updated definition of “culpable negligence,” and the same sample specification for “other 

cases.” Compare MCM pt. IV, para. 68a (2016 ed.), with MCM

pt. IV, para. 59 (2019 ed.). 
United States v. Stradtmann, No. 23-0223/AF

Opinion of the Court

5

neglect, endangerment, and abuse.”4 MCM, Analysis of Punitive Articles app. 23 at A23-22 (2016 ed.). 

Under the 2016 MCM, the presidentially enumerated 

elements for child endangerment under Article 134 were as 

follows: 

 (1) That the accused had a duty for the care of 

a certain child;

 (2) That the child was under the age of 16 

years;

 (3) That the accused endangered the child’s 

mental or physical health, safety, or welfare 

through design or culpable negligence; and

 (4) 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. 68a.b. (2016 ed.) (emphasis added). Part 

IV of the 2016 MCM defines culpable negligence as: 

[A] degree of carelessness greater than simple 

negligence. It is a negligent act or omission accompanied by a culpable disregard for the foreseeable 

consequences to others of the act or omission. In 

the context of this offense, culpable negligence 

may include acts that, when viewed in the light of 

human experience, might foreseeably result in 

harm to a child, even though such harm would not 

reasonably be the natural and probable consequence of such acts. In this regard, the age and 

maturity of the child, the conditions surrounding 

the neglectful conduct, the proximity of assistance 

available, the nature of the environment in which 

the child may have been left, the provision made 

for the care of the child, and the location of the 

parent or adult responsible for the child relative 

to the location of the child, among others, may be 

considered in determining whether the conduct 

constituted culpable negligence.

4 In Vaughan, this Court recognized “child neglect” as a novel 

offense under Article 134 with a required mens rea of culpable 

negligence. 58 M.J. at 35.
United States v. Stradtmann, No. 23-0223/AF

Opinion of the Court

6

Id. pt. IV, para. 68a.c.(3) (2016 ed.). 

B. Executive Power and Article 134

The President has broad power under Article 36(a), 

UCMJ, to issue “[p]retrial, trial, and post-trial procedures” 

in the MCM. 10 U.S.C. § 836(a) (2012). Despite the breadth

of this authority, this Court is “not bound by the President’s interpretation of the elements of substantive offenses.” United States v. Wilson, 76 M.J. 4, 6 (C.A.A.F. 

2017). Even so, this Court has recognized the President’s 

unique role regarding Article 134 when he provides enumerated elements to limit the scope of the General Article,

and we have held that “absent a contrary intention in the 

Constitution or a statute, this Court should adhere to the 

Manual’s elements of proof.” United States v. Guess, 48 

M.J. 69, 71 (C.A.A.F. 1998). 

IV. Discussion

Appellant argues that the Supreme Court’s decision in 

Elonis governs the mens rea that must be applied to the 

Article 134 offense of child endangerment. Specifically, he 

asserts that a mens rea of “recklessness” must be applied

in the instant case because in Elonis, “the Supreme Court 

explained that ‘recklessness is the lowest mens rea which 

is necessary to separate wrongful conduct from otherwise 

innocent conduct.’ ” Brief for Appellant at 9, United States 

v. Stradtmann, No. 23˗0223 (C.A.A.F. Sept. 15, 2023)

(quoting United States v. Gifford, 75 M.J. 140, 147 

(C.A.A.F. 2016)). In support of his position, Appellant cites 

our previous decisions in Haverty and Tucker for the proposition that this Court must “read into the statute” recklessness as the requisite mens rea for the enumerated child 

endangerment offense under Article 134. Id. at 12. 

We disagree, however, with Appellant’s analytical approach. Namely, we conclude that his invocation of Elonis

is premature, at best. The facts underpinning Elonis—as 

well as Gifford, Haverty, and Tucker—are readily distinguishable from the circumstances before us. In those cases, 

the statutory scheme was devoid of any mention of an applicable mens rea, and consequently, the deciding court 
United States v. Stradtmann, No. 23-0223/AF

Opinion of the Court

7

was compelled to impose one. But here, the presidentially 

promulgated language explicitly states that the mens rea 

for the offense of child endangerment is culpable negligence. Therefore, the initial question before us is whether 

the President had the authority to impose this mens rea for 

the offense at issue. If he did, there is no factual or legal 

predicate for this Court to engage in an Elonis analysis. 

As indicated above, “[w]hile we are not bound by the 

President’s interpretation of the elements of substantive 

offenses, both his interpretation and listing of offenses under Article 134, UCMJ, is persuasive authority to the 

courts.” United States v. Forrester, 76 M.J. 479, 485

(C.A.A.F. 2017) (citations omitted) (internal quotations 

omitted). Stated differently, “when the President’s narrowing construction of a statute does not contradict the express 

language of a statute, it is entitled to some deference, and 

we will not normally disturb that construction.” Wilson, 76 

M.J. at 6. 

In the instant case, we conclude that the President 

acted within his authority when he imposed a culpable negligence mens rea for this Article 134 offense. We specifically note three points. First, Article 134 does not expressly 

provide a mens rea standard, so the President’s election of 

“culpable negligence” in the accompanying elements and 

definitions does not contradict the plain language of the 

statute. Second, we have previously noted that even the 

minimal mens rea standard of simple negligence may be 

sufficient to properly obtain a conviction for some offenses 

under Article 134. See Tucker, 78 M.J. at 186 n.3 (“To be 

clear, we are not holding that negligence can never be a 

mens rea for an Article 134, UCMJ offense. . . . We simply 

hold that negligence is an insufficient mens rea with respect to this particular . . . offense of providing alcohol to 

minors.” (citing United States v. Kick, 7 M.J. 82, 84 (C.M.A. 

1979))). Starting from that premise, the President’s imposition of a culpable negligence mens rea standard for the 

offense of child endangerment serves to limit the “otherwise broad scope” of the statute. Parker v. Levy, 417 U.S. 

733, 752 (1974). And third, this outcome recognizes the 
United States v. Stradtmann, No. 23-0223/AF

Opinion of the Court

8

President’s unique relationship with Article 134 and his 

ability as the “ultimate military authority” to define the 

contours of the article through enumerated elements.

United States v. Gleason, 78 M.J. 473, 476 (C.A.A.F. 2019).

Thus, we conclude that the mens rea standard of “culpable 

negligence” supplied by the President for the Article 134 

offense of child endangerment must be given full force and 

effect.5 Appellant’s conviction therefore stands. 

V. Conclusion

The decision of the United States Air Force Court of 

Criminal Appeals is affirmed.

5 In his Reply, Appellant raises whether the President has 

“redefined culpable negligence to require a lower level of scienter 

than that defined in Vaughan.” Reply Brief for Appellant at 2, 

United States v. Stradtmann, No. 23˗0223 (C.A.A.F. Oct. 30, 

2023). However, this is outside the scope of the granted issue

and we decline to address it.
United States v. Stradtmann, No. 23-0223/AF

Judge SPARKS, concurring.

I join the Chief Judge in recognizing the President’s special relationship with Article 134, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 934, and I agree that he had 

the authority to designate culpable negligence as the requisite mens rea for the offense of child endangerment under Article 134, UCMJ. I write separately to express my 

own observations regarding the issue of mens rea as it 

arises in Article 92, UCMJ, 10 U.S.C. § 892, and Article 

134, UCMJ, offenses.

First, Appellant’s invocation of Elonis v. United States, 

575 U.S. 723, 736 (2015), might very well be premature. 

However, the real problem is that Appellant has misread 

Elonis. As the Government points out, Elonis does not 

stand for the proposition that recklessness is the default 

mens rea for Article 134, UCMJ, offenses. Rather, the Supreme Court in Elonis simply held that negligence should 

not be inferred if the statute in question is silent on mens 

rea. Id.

Secondly, as the Chief Judge notes, United States v. 

Gifford, 75 M.J. 140, 147 (C.A.A.F. 2016), United States v. 

Haverty, 76 M.J. 199 (C.A.A.F. 2017), and United States v. 

Tucker, 78 M.J. 183 (C.A.A.F. 2018), are easily distinguished on their facts. However, a further distinction to be 

made between Gifford, Haverty, and Tucker and this case 

seems to have not as much to do with the “statutory 

scheme” and more to do with which military authority is 

proscribing the conduct at issue. It seems easier for me to 

frame the distinction as Gifford and Haverty on the one 

hand and Tucker and this case on the other. Gifford and 

Haverty were Article 92, UCMJ, cases whereas Tucker and 

this case are Article 134, UCMJ, cases. Neither Article 92, 

UCMJ, nor Article 134, UCMJ, on their face, include a 

mens rea requirement. Under Article 92, UCMJ, Congress 

has granted authority to commanders to proscribe specific 

types of conduct. On the other hand, the listed offenses in 

the Manual for Courts-Martial, United States (MCM) under Article 134, UCMJ, are instances of the President’s exercise of authority derived from the congressional delegation in Article 36, UCMJ, 10 U.S.C. § 836. This explains to 

me why in Gifford and Haverty we were analyzing the 
United States v. Stradtmann, No. 23-0223/AF

Judge SPARKS, concurring

2

specific commander-regulated conduct set out in the language of the regulation. By contrast, in Tucker, as in this 

case, the analysis begins with the text of Article 134, 

UCMJ, before the focus turns to the President’s specific description of the proscribed conduct including relevant elements and definitions. An important observation, in my 

view, is that Articles 92 and 134, UCMJ, are both unique 

military statutory creatures with absolutely no civilian analogue. Therefore, attempting to apply traditional analyses, including that set forth in Elonis, to the language on 

the face of these two statutes is a less than useful exercise.

In Gifford, we analogized the commander’s articulation 

of certain proscribed conduct through regulations and orders to Congress’s expressions when articulating offenses 

in federal criminal statutes. Regarding whether Congress 

in a particular instance has decided to exclude a mens rea 

from a statutory offense, we observed that there must be a 

“clear command” to that effect. 75 M.J. at 144. We then 

concluded, “[i]f Congress is expected to speak with a clear 

voice in this context, the same should be expected of a commander.” Id. Thus, we considered the question before the 

Court to be “whether the commander—acting pursuant to 

his congressionally delegated authority—intended to create a public welfare offense [absent a mens rea] through 

his general order.” Id. We of course found no such expression in the directive in that case. Applying the analysis in 

Elonis, we ultimately determined that because of a lack of 

any expression of a mens rea requirement in the language 

of the directive, the government was required to prove the 

accused had acted with reckless disregard, the lowest mens 

rea necessary to separate wrongful conduct from otherwise 

innocent conduct. Id. at 147. We arrived at the same conclusion in Haverty, a case involving a directive prohibiting 

hazing. 76 M.J. at 207-08 (holding that recklessness was a 

sufficient mens rea to separate wrongful conduct from innocent conduct).

In Tucker, the question was, as between negligence and 

recklessness, which was the appropriate mens rea for the 

offense of providing alcohol to minors charged as a general 

disorder under Article 134, UCMJ. 78 M.J. at 185. There, 

after noting that Article 134, UCMJ, does not contain a 
United States v. Stradtmann, No. 23-0223/AF

Judge SPARKS, concurring

3

specific mens rea element, we framed the question before 

the Court to be whether there was “any statute, precedent, 

custom, or ancient usage that would cause us to conclude 

that negligence is the proper [mens rea] for the Article 134, 

UCMJ, offense of providing alcohol to minors.” Id. at 186. 

Finding none, and relying on Elonis, we concluded it was 

“inappropriate to infer a negligence mens rea in the absence of a statute or ancient usage.” Id. at 186 (citations 

omitted) (internal quotation marks omitted). Therefore, we 

decided recklessness was the lowest mens rea necessary to 

separate wrongful conduct from otherwise innocent conduct for the Article 134, UCMJ, offense of providing alcohol 

to minors. Id. at 186.

This brings me to my position vis-à-vis the Chief 

Judge’s well-reasoned opinion in this case. I agree that it is 

more than appropriate to establish that the President had 

the authority to promulgate the elements of child endangerment here. But, when the President enumerates the elements of offenses he is “not defining offenses but merely 

indicating various circumstances in which the elements of 

Article 134, UCMJ, could be met.” United States v. Jones, 

68 M.J. 465, 471 (C.A.A.F. 2010). Therefore, I believe the 

question presented to the Court here is relatively the same 

question presented to the Court in Tucker, namely, 

whether there is any statute, precedent, custom, or ancient 

usage that would cause us to conclude that culpable negligence is the proper mens rea for the offense of child endangerment. Here, the President not only expressly spoke to 

the issue of mens rea, he did so in reliance on established 

military custom and precedent. See United States v. 

Vaughan, 58 M.J. 29 (C.A.A.F. 2003) (finding that the offense of child neglect was consistent with military custom 

and regulation). I therefore agree with Chief Judge Ohlson 

that the President was within his authority when he articulated culpable negligence as the appropriate mens rea for 

the offense of child endangerment under Article 134, 

UCMJ.

Finally, it seems to me that Elonis protects the accused 

when neither the language of a directive in an Article 92, 

UCMJ, context, nor the language of a specification charged 

as a novel offense under Article 134, UCMJ, nor the 
United States v. Stradtmann, No. 23-0223/AF

Judge SPARKS, concurring

4

language of an offense listed by the President in the MCM

speaks to the issue of mens rea. Additionally, the requirement for examination and reliance upon ancient military 

usage, custom, and regulation not only serves to protect the 

President’s prerogatives but also serves to limit the broad 

reach of the literal language of Article 134, UCMJ. See Parker v. Levy, 417 U.S. 733, 753-54 (1974) (rejecting argument that Articles 133, 10 U.S.C. § 933, and 134, UCMJ, 

are unconstitutionally vague).

For these reasons, I concur.