This opinion is subject to revision before publication 

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________ 

UNITED STATES 

Appellee 

v. 

Joseph R. HAVERTY, Sergeant 

United States Army, Appellant 

No. 16-0423 

Crim. App. No. 20130559 

Argued November 16, 2016—Decided April 25, 2017 

Military Judges: Kirsten V. C. Brunson, David H. Robertson, and 

James W. Herring 

For Appellant: Captain Cody Cheek (argued); Colonel Mary 

J. Bradley, Major Christopher D. Coleman, and Captain 

Scott Ashby Martin (on brief); Lieutenant Colonel Jonathan 

F. Potter. 

For Appellee: Captain John Gardella (argued); Colonel 

Mark H. Sydenham and Major Cormac M. Smith (on brief). 

Judge OHLSON delivered the opinion of the Court, in 

which Chief Judge ERDMANN and Judges RYAN and 

SPARKS joined. Judge STUCKY filed a separate opinion concurring in part and dissenting in part. 

_______________

Judge OHLSON delivered the opinion of the Court. 

Contrary to Appellant’s pleas, a military panel with enlisted representation, sitting as a general court-martial, 

convicted Appellant of one specification each of violation of a 

lawful regulation, cruelty and maltreatment, aggravated 

sexual contact, abusive sexual contact, indecent viewing, 

larceny, and assault consummated by a battery, in violation 

of Articles 92, 93, 120, 120c, 121, and 128, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. §§ 892, 893, 920, 920c, 

921, 928 (2012). The panel sentenced Appellant to a reduction in grade to E-1, forfeiture of all pay and allowances, 

confinement for 120 days, and a bad-conduct discharge. The 

convening authority approved the adjudged findings and 

sentence. 
United States v. Haverty, No. 16-0423/AR 

Opinion of the Court 

2 

The United States Army Court of Criminal Appeals 

(CCA) dismissed the finding of guilty for the Article 120, 

UCMJ, offense on the basis of unreasonable multiplication of 

charges with the Article 120c, UCMJ, offense. Additionally, 

the CCA found there was dilatory post-trial processing by 

the Government which merited providing sentencing relief 

to Appellant. However, the CCA summarily concluded that 

the issues raised below by Appellant pursuant to United 

States v. Grostefon1 were without merit and thus did not address the issue granted review by this Court. In reassessing 

Appellant’s sentence, the CCA affirmed only so much of the 

sentence as provided for a reduction in grade to E-1, forfeiture of all pay and allowances, confinement for ninety days, 

and a bad-conduct discharge. 

We granted review of the following issue: 

Whether the military judge committed plain error when he failed to instruct the panel on the 

mens rea required for an Article 92, UCMJ, violation of Army Regulation 600-20, which prohibits requiring the consumption of excessive 

amounts of alcohol as an initiation rite of passage. 

United States v. Haverty, 75 M.J. 370, 370–71 (C.A.A.F. 

2016). 

We conclude that pursuant to the Supreme Court precedent of Elonis v. United States, 135 S. Ct. 2001 (2015), the 

minimum mens rea that is required for this Article 92, 

UCMJ, offense is recklessness. Further, we hold that the 

military judge committed plain error in this case by not instructing the panel with the proper mens rea standard. We 

therefore reverse the decision of the CCA on the Article 92, 

UCMJ, offense and remand the case for further proceedings 

consistent with this opinion. 

I. Background 

Appellant, a sergeant in the United States Army, was accused of multiple offenses related to an encounter in late 

September 2012 with Specialist (SPC) BB, who had recently 

arrived at Fort Bragg. Over a period of two days, Appellant, 

 1 12 M.J. 431 (C.M.A. 1982). 
United States v. Haverty, No. 16-0423/AR 

Opinion of the Court 

3 

who was SPC BB’s squad leader,2 helped her run errands to 

put together her barracks room and assemble her field gear. 

On the second day, Appellant arrived at SPC BB’s barracks 

to help her prepare her gear, and without invitation grabbed 

a beer out of the refrigerator, lay back on the pillows on her 

bed, and kicked off his shoes. Appellant then drank more alcohol belonging to SPC BB’s roommate. 

Despite SPC BB telling him that she did not drink alcohol, Appellant twice insisted that she drink a shot, saying 

that if she did not do so he would not help her assemble her 

gear or take her to the store. Appellant told SPC BB that 

this demand did not constitute “hazing” but instead was an 

“initiation.” SPC BB testified that she initially declined to 

drink the alcohol, but that ultimately she felt pressured into 

doing so because Appellant said it was a required part of her 

initiation, she needed help with her gear, and Appellant 

used a serious tone of voice when making the demand. 

Upon returning to the barracks room after a trip to the 

store, Appellant used “[t]he same raised commanding voice” 

and told SPC BB to take another shot. SPC BB responded 

that she did not want to, but Appellant ignored her objections and said this could be SPC BB’s last shot if she took it. 

SPC BB then drank a capful of alcohol that Appellant 

poured for her. After that, Appellant asked SPC BB if she 

knew how to conduct a “patient assessment” and then insisted on performing one on her, which involved placing his 

hands on various parts of her body to include her vaginal 

area, despite her objections.3 

Based on his conduct, Appellant was charged with, 

among other things, hazing under Article 92, UCMJ. Article 

92, UCMJ, prohibits servicemembers from violating or failing to obey “any lawful general order or regulation.” Appellant was convicted of violating the Army regulation prohibiting hazing, which states in pertinent part: 

 2 Both Appellant and SPC BB were Army medics. 

3 The remaining underlying facts related to the charges and 

convictions in this case are not relevant to the issue before this 

Court. 
United States v. Haverty, No. 16-0423/AR 

Opinion of the Court 

4 

The Army has been and continues to be a values-based organization where everyone is encouraged to do what is right by treating others 

as they should be treated—with dignity and respect. Hazing is fundamentally in opposition to 

our values and is prohibited. 

 a. Definition. Hazing is defined as any conduct whereby one military member or employee, regardless of Service or rank, unnecessarily 

causes another military member or employee, 

regardless of Service or rank, to suffer or be exposed to an activity that is cruel, abusive, oppressive, or harmful. 

 (1) Hazing includes, but is not limited, to 

any form of initiation “rite of passage” or congratulatory act that involves: physically striking another in order to inflict pain; piercing another’s skin in any manner; forcing or requiring 

the consumption of excessive amounts of food, 

alcohol, drugs, or other substances; or encouraging another to engage in illegal, harmful, 

demeaning or dangerous acts. Soliciting or coercing another to participate in any such activity is also considered hazing. Hazing need not 

involve physical contact among or between military members or employees; it can be verbal or 

psychological in nature. 

 .... 

b. Scope. Hazing is not limited to superiorsubordinate relationships. It may occur between peers or even, under certain circumstances, may involve actions directed towards 

senior military personnel by those junior in 

rank or grade to them (for example, a training 

instructor hazing a student who is superior in 

rank). Hazing has at times occurred during 

graduation ceremonies or similar military “rites 

of passage.” However, it may also happen in 

day-to-day military settings. It is prohibited in 

all cases, to include off-duty or “unofficial” celebrations or unit functions. Express or implied 

consent to hazing is not a defense to violation of 

this regulation. 
United States v. Haverty, No. 16-0423/AR 

Opinion of the Court 

5 

Dep’t of the Army, Reg. 600-20, Personnel-General, Army 

Command Policy para. 4-20.a. (Mar. 18, 2008) [hereinafter 

AR 600-20].4

At the court-martial, the military judge drafted the panel 

instructions “with the parties’ input” and provided them to 

both parties for review prior to reading them to the panel. 

Neither party objected to the instructions or requested any 

additional instructions. The military judge instructed the 

panel members on the Article 92, UCMJ, offense as follows: 

 I will advise you of the elements of each offense charged. In The [sic] Specification of 

Charge I, the accused is charged with the offense of violating a lawful general regulation, in 

violation of Article 92, [UCMJ]. In order to find 

the accused guilty of this offense, you must be 

convinced by legal and competent evidence beyond reasonable doubt: 

 First, that there was in existence a certain 

lawful general regulation in the following 

terms: Army Regulation 600-20, paragraph 4-

20(a), dated 18 March 2008, which prohibits requiring the consumption of excessive amounts 

of alcohol as an initiation rite of passage; 

 second, that the accused had a duty to obey 

such regulation; and 

 third, that on or about 28 September 2012, 

at Fort Bragg, North Carolina, the accused violated this lawful general regulation by wrongfully requiring [SPC BB] to consume alcohol. 

 As a matter of law, the regulation in this 

case as described in the specification, if in fact 

there was such a regulation, was a lawful regulation. 

 4 The version of AR 600-20 pertinent to Appellant’s charge was 

dated March 18, 2008, effective April 18, 2008, and reissued August 4, 2011, effective September 20, 2011, by order of the Secretary of the Army. A new version of AR 600-20 was issued and became effective on November 6, 2014. The hazing regulation at 

issue in this case was combined into a new regulation paragraph 

4-19, “Treatment of persons,” addressing both hazing and bullying. See AR 600-20, para. 4-19. at 30-31 (Nov. 6, 2014). 
United States v. Haverty, No. 16-0423/AR 

Opinion of the Court 

6 

 General regulations are those regulations 

which are generally applicable to an armed 

force and which are properly published by the 

Secretary of Defense or a military department. 

You may find the accused guilty of violating a 

general regulation only if you are satisfied beyond a reasonable doubt that the regulation 

was general. 

II. Applicable Law 

The U.S. Supreme Court has observed that “[f]ew areas 

of criminal law pose more difficulty than the proper definition of the mens rea required for any particular crime.” United States v. Bailey, 444 U.S. 394, 403 (1980). The remainder 

of this opinion serves as a testament to the accuracy of that 

pronouncement. 

Any analysis of the issue before us must begin from the 

premise that “[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American 

criminal jurisprudence.” United States v. United States Gypsum Co., 438 U.S. 422, 436 (1978) (alteration in original) (citation omitted) (internal quotation marks omitted). The Supreme Court recently reiterated this legal tenet in Elonis: 

“Although there are exceptions, the ‘general rule’ is that a 

guilty mind is ‘a necessary element in the indictment and 

proof of every crime.’” 135 S. Ct. at 2009 (quoting United 

States v. Balint, 258 U.S. 250, 251 (1922)).5 

The next important principle is that silence in a criminal 

statute regarding a mens rea requirement does not necessarily prevent such a requirement from being inferred.6 See 

 5 The general rule that an accused must have a “guilty mind” 

does not mean that, as a general rule, an accused must know that 

his actions constitute criminal conduct. United States v. Caldwell, 

75 M.J. 276, 280 n.4 (C.A.A.F. 2016). 

6 As indicated above, mens rea is not always required for criminal offenses. In United States v. Gifford, this Court discussed the 

strict liability exception to the mens rea general rule. 75 M.J. 140, 

142–44 (C.A.A.F. 2016); see also Staples v. United States, 511 U.S. 

600, 606 (1994); Balint, 258 U.S. at 252. Specifically, we noted 

that with strict liability offenses, the government is not required 

“to prove that an accused had knowledge of the facts that make 

his or her actions criminal in order to secure a conviction.” Gifford, 

75 M.J. at 142. But we also recognized in Gifford that “the Su-
United States v. Haverty, No. 16-0423/AR 

Opinion of the Court 

7 

id. Courts must seek to discern any legislative intent about 

a mens rea requirement in a statute that is otherwise silent. 

If a court determines that Congress intended, either expressly or impliedly, to purposefully omit a mens rea requirement, then the court must respect that legislative intent. Gifford, 75 M.J. at 143–44. Similarly, if a court 

determines that Congress intended, either expressly or impliedly, to have a particular mens rea requirement apply to 

a certain criminal statute, then the court must construe that 

statute accordingly. See Elonis at 2009–10; Staples, 511 U.S. 

at 606. If, however, a statute is silent regarding a mens rea 

requirement, and if a court cannot discern the legislative intent in regard to that statute, then the court will infer a 

mens rea requirement consistent with the “general rule” cited by the Supreme Court in Elonis, 135 S. Ct. at 2009 (quoting Balint, 258 U.S. at 251). 

In Gifford, this Court concluded that when construing an 

order—a violation of which underlies an Article 92, UCMJ, 

offense—commanders should be held to the same standard 

as legislatures when determining whether they intended to 

create an offense that does not require the government to 

prove an accused’s mens rea; that is, they must speak with 

“a clear voice” on the matter. 75 M.J. at 144. When a commander fails to do so, we interpret the criminal offense as 

including “‘broadly applicable scienter7 requirements.’” 

Elonis, 135 S. Ct. at 2009 (footnote added) (citation omitted). 

Accordingly, in such cases we must decide whether the proper level of mens rea that we should infer is “general intent,” 

“negligently,” “recklessly,” “knowingly,” or “intentionally.” 

Id. Consistent with the Supreme Court’s ruling in Elonis, in 

making that determination we read into the statute or regulation “only that mens rea which is necessary to separate 

wrongful conduct from otherwise innocent conduct.” Elonis, 

135 S. Ct. at 2010 (citation omitted) (internal quotation 

marks omitted). 

 

preme Court has cast a jaundiced eye” on strict liability offenses 

by characterizing them as “generally disfavored.” Id. (quoting 

United States Gypsum Co., 438 U.S. at 438). 

7 The terms “scienter” and “mens rea” are often used interchangeably. 
United States v. Haverty, No. 16-0423/AR 

Opinion of the Court 

8 

We begin this process of determining the appropriate 

mens rea by noting that the Supreme Court has “‘long been 

reluctant to infer that a negligence standard8 was intended 

in criminal statutes.’” Id. at 2011 (footnote added) (quoting 

Rogers v. United States, 422 U.S. 35, 47 (1975) (Marshall, J., 

concurring)). Accordingly, upon ruling out “negligently” as 

the appropriate mens rea, we must next turn our attention 

to the question of whether “general intent” suffices. 

“General intent” merely requires that an accused commit 

an act with knowledge of certain facts. Caldwell, 75 M.J. at 

281. As defined in Black’s Law Dictionary, supra note 8, at 

931, general intent involves “[t]he intent to perform an act 

even though the actor does not desire the consequences that 

result.” In Carter v. United States, the Supreme Court held 

that the general intent requirement contained in a statute 

that criminalized the taking “by force and violence” items of 

value belonging to or in the care of a bank was sufficient. 

530 U.S. 261, 269–70 (2000). Similarly, in Caldwell, this 

Court held that a general intent mens rea was sufficient to 

prove maltreatment under Article 93, UCMJ. 75 M.J. at 282. 

We next turn our attention to “recklessly.” Black’s Law 

Dictionary, supra note 8, at 1462, defines “recklessly” as follows: “In such a manner that the actor knew that there was 

a substantial and unjustifiable risk that the social harm the 

law was designed to prevent would occur and ignored this 

risk when engaging in the prohibited conduct.” Only if “general intent” or “recklessly” are not sufficient to separate 

wrongful conduct from otherwise innocent conduct do we 

need to turn our attention to “knowingly” or “intentionally,” 

and as explained below, the need to do so does not arise in 

the instant case. Elonis, 135 S. Ct. at 2010. 

 8 Black’s Law Dictionary defines the mens rea of criminal negligence as “[t]he objectively assessed mental state of an actor who 

should know that there is a substantial and unjustifiable risk that 

the social harm that the law is designed to prevent will occur but 

who nevertheless engages in the prohibited action.” Black’s Law 

Dictionary 1197 (10th ed. 2014).
United States v. Haverty, No. 16-0423/AR 

Opinion of the Court 

9 

III. Analysis 

A. Hazing offense mens rea 

Applying the general legal principles discussed above, we 

now must determine what mens rea requirement applies to 

the specific hazing regulation at issue here. In doing so, we 

note several points. 

First, although the regulation contains no explicit mens 

rea, there is no indication that the Secretary of the Army 

intended hazing to be a strict liability offense. See AR 600-20 

para. 4-20. 

Second, this Court cannot discern whether the Secretary 

of the Army intended to have some particular mens rea requirement apply to this regulation. 

And third, in light of these first two points, we are obligated to interpret the criminal offense of hazing as including 

“broadly applicable [mens rea] requirements.”9 Elonis, 135 

S. Ct. at 2009 (internal quotation marks omitted) (citation 

omitted). In deciding what level of mens rea we should infer 

in this instance, we remain mindful of the admonition that 

we should infer “only that mens rea which is necessary to 

separate wrongful conduct from otherwise innocent conduct.” Id. at 2010 (internal quotation marks omitted) (citation omitted). 

In making this determination, we conclude that “general 

intent” is not a sufficient level of mens rea to separate 

wrongful conduct from otherwise innocent conduct,10 and 

 9 Just as we indicated in Gifford, our ruling today—and our reiteration of the principle that “wrongdoing must be conscious to be 

criminal,” 75 M.J. at 144 (internal quotation marks omitted) (citation omitted)—does not disturb statutory law and our precedent 

regarding offenses for which lack of knowledge cannot be a defense (e.g., the age of a victim in a sexual offense involving children). Id. at 144 n.6. 

10 We acknowledge that the instant case is somewhat similar 

to Caldwell where we held that general intent is sufficient to 

prove the offense of maltreatment. 75 M.J. at 282. However, the 

two cases are distinguishable on several grounds. First, this case 

involves conduct in violation of a lawful regulation that was 

promulgated by the Secretary of the Army and has been criminalized through Article 92, UCMJ. Caldwell, however, involved a mil-
United States v. Haverty, No. 16-0423/AR 

Opinion of the Court 

10 

that our recent opinion in Gifford provides the proper template for determining the mens rea requirement in the instant case. In Gifford, the accused was charged with violating a general order that prohibited servicemembers twentyone years of age and older from providing alcohol to individuals under twenty-one years of age for the purpose of consumption. 75 M.J. at 141. We concluded that: (a) “negligence” was not a sufficient level of mens rea to separate 

wrongful conduct from otherwise innocent conduct; (b) a 

“recklessness” mens rea would adequately separate wrongful conduct from otherwise innocent conduct; and (c) intuiting a mens rea greater than “recklessness” would cause us to 

improperly “‘step[] over the line that separates interpretation from amendment.’” Id. at 147 (citation omitted). We 

therefore held in Gifford that in order to obtain a conviction 

under such circumstances, the government was required to 

prove that “Appellant acted with reckless disregard as to 

whether the individuals to whom he was providing alcohol 

 

itary offense that was specially created by Congress and prohibited under its own separate article—Article 93, UCMJ—reflecting 

Congress’s particular concern about “the deeply corrosive effect 

that maltreatment can have on the military’s paramount mission 

to defend our Nation.” 75 M.J. at 281, 285. Second, Caldwell’s 

holding that general intent was sufficient to find a violation of Article 93, UCMJ, was predicated on the known existence of a superior-subordinate relationship between the accused and the victim. 

For the offense of hazing under Article 92, UCMJ, the existence of 

a superior-subordinate relationship is explicitly not required. AR 

600-20 para. 4-20.b. states: “Hazing is not limited to superiorsubordinate relationships. It may occur between peers or even, 

under certain circumstances, may involve actions directed towards 

senior military personnel by those junior in rank or grade ....” And 

third, in Caldwell, we held that when an accused knew that the 

alleged victim was subject to his or her orders, and knew that he 

or she made statements or engaged in certain conduct regarding 

that subordinate, then under Article 93, UCMJ, it was sufficient 

for those statements or actions to be viewed objectively as being 

abusive because such abusive conduct that is “consciously directed 

at a subordinate is in no sense lawful.” 75 M.J. at 282. That is not 

true under AR 600-20. The regulation defines hazing so broadly 

that actions that are illegal under certain circumstances may be 

permissible under other circumstances. Thus the two cases are not 

analogous and our holding in Caldwell is not controlling in the 

instant case. 
United States v. Haverty, No. 16-0423/AR 

Opinion of the Court 

11 

were under twenty-one years of age.” Id. at 148. The same 

analytical approach applies here. 

However, before we analyze the sufficiency of a “general 

intent” mens rea requirement and then apply the Gifford

template to the instant case, we first must address some imprecision in the language of AR 600-20. 

As noted above, AR 600-20, para. 4-20.a., defines hazing 

as follows: 

a. Definition. Hazing is defined as any conduct whereby one military member or employee, regardless of Service or rank, unnecessarily 

causes another military member or employee, 

regardless of Service or rank, to suffer or be exposed to an activity that is cruel, abusive, oppressive, or harmful. 

 (1) Hazing includes, but is not limited, to 

any form of initiation “rite of passage” or congratulatory act that involves: physically striking another in order to inflict pain; piercing another’s skin in any manner; forcing or requiring 

the consumption of excessive amounts of food, 

alcohol, drugs, or other substances; or encouraging another to engage in illegal, harmful, 

demeaning or dangerous acts. Soliciting or coercing another to participate in any such activity is also considered hazing. Hazing need not 

involve physical contact among or between military members or employees; it can be verbal or 

psychological in nature. 

Para. 4-20.b., which addresses the scope of hazing, states 

the following: 

 b. Scope. Hazing is not limited to superiorsubordinate relationships. It may occur between peers or even, under certain circumstances, may involve actions directed towards 

senior military personnel by those junior in 

rank or grade to them (for example, a training 

instructor hazing a student who is superior in 

rank). Hazing has at times occurred during 

graduation ceremonies or similar military “rites 

of passage.” However, it may also happen in 

day-to-day military settings. It is prohibited in 

all cases, to include off-duty or “unofficial” celebrations or unit functions. Express or implied 
United States v. Haverty, No. 16-0423/AR 

Opinion of the Court 

12 

consent to hazing is not a defense to violation of 

this regulation. 

This language is overly expansive. As can be seen above, 

the regulation uses phrases such as “hazing is defined as 

any conduct whereby one military member or employee ... 

unnecessarily causes [another person] ... [to] be exposed to

an activity that is ... harmful,” and “[h]azing includes, but is 

not limited, to [sic] any form of initiation ‘rite of passage’ or 

congratulatory act.” (Emphasis added.) These provisions 

could be viewed as sweeping within the ambit of the regulation conduct that has no nexus to activity that is generally 

understood to constitute hazing. To address that concern, we 

conclude that for UCMJ purposes, the passage “but is not 

limited, to” which appears in para. 4-20.a.(1) refers solely to 

the examples given of various types of hazing behavior. And 

as a corollary, we conclude that in order for conduct to be 

prosecuted as hazing under AR 600-20, that conduct must 

consist of “any form of initiation ‘rite of passage’ or congratulatory act.”11 We take this step in accordance with our deci-

 11 We observe that the relevant paragraph of the revised November 6, 2014, version of AR 600-20 para. 4-19, addresses the 

scope of hazing as follows: 

b. Scope.

(1) What constitutes hazing and bullying? Hazing and bullying can include both physical and 

nonphysical interactions. Hazing typically involves conduct directed at new members of an 

organization or individuals who have recently 

achieved a career milestone. It may result from 

any form of initiation, “rite of passage,” or congratulatory act that includes unauthorized conduct such as: physically striking another while 

intending to cause, or causing, the infliction of 

pain or other physical marks such as bruises, 

swelling, broken bones, internal injuries; piercing another’s skin in any manner; forcing or requiring the consumption of excessive amounts 

of food, alcohol, drugs, or other substances; or 

encouraging another to engage in illegal, harmful, demeaning, or unauthorized dangerous 

acts.... 

(Emphasis added.) Though the revised regulation did not inform 

our interpretation of the regulation at issue in this case, we note 
United States v. Haverty, No. 16-0423/AR 

Opinion of the Court 

13 

sion in United States v. Neal, 68 M.J. 289, 301–02 (C.A.A.F. 

2010), where this Court recognized that there was both a 

broad and a narrow interpretation of a statute, and “decline[d] to adopt a broad interpretation that would raise a 

direct conflict with ... a Supreme Court decision applicable 

to criminal proceedings, when a narrow interpretation can 

avoid such a conflict.” Cf. Brockett v. Spokane Arcades, Inc., 

472 U.S. 491, 502–07 (1985) (excising words to give a statute 

constitutional effect). 

Having addressed this preliminary point, we next turn 

our attention to our mens rea analysis. We first conclude 

that, in regard to the particular regulation at issue here, 

“general intent” is not a sufficient level of mens rea to separate wrongful conduct from otherwise innocent conduct. See 

Caldwell, 75 M.J. at 281–82; see also Elonis, 135 S. Ct. at 

2010. The elements of “Hazing” under AR 600-20 are as follows: (1) conduct (2) that unnecessarily causes another (3) to 

suffer or be exposed to an activity that is cruel, abusive, oppressive, or harmful. As noted earlier, general intent merely 

requires “[t]he intent to perform [the actus reus] even though 

the actor does not desire the consequences that result.” 

Black’s Law Dictionary, supra note 8, at 931 (emphasis added). Thus, applying the mens rea of general intent to these 

elements could cause a servicemember to be convicted of 

hazing if he encourages a new member of his unit to engage 

in conduct which the servicemember honestly believes is not 

harmful, but which, objectively, could be considered harmful. But more importantly for our purposes, under certain 

scenarios the application of the general intent mens rea 

would not separate criminal conduct from otherwise innocent conduct. 

The basis for this conclusion is demonstrated by the following example: Let us suppose that a servicemember goads 

a longtime friend who is newly assigned to his military unit 

into playing a drinking game whereby, in the course of participating, the friend is “required” to consume “excessive 

 

that our interpretation conforms with the plain language of the 

revised regulation. The unclear language “but is not limited, to” is 

no longer of concern in the current AR 600-20. 
United States v. Haverty, No. 16-0423/AR 

Opinion of the Court 

14 

amounts ... of alcohol,” and thus is exposed to an activity 

that is harmful. Let us further suppose that the 

servicemember has exposed his friend to this drinking game 

merely because he thinks the friend will have a good time, 

and the servicemember honestly believes that the drinking 

game is not “harmful.” Such conduct could be perfectly innocent in a legal context—albeit extremely misguided and unwise. 

And yet, the application of a general intent mens rea requirement to the provisions of AR 600-20 could cause these 

same actions, under these same circumstances, to be treated 

as unlawful conduct under Article 92, UCMJ. That is because under the hypothetical scenario presented above, the 

servicemember had the intent to perform the actus reus of 

encouraging his friend to play a drinking game which unnecessarily caused his friend to be exposed to a harmful activity. If an objective observer would conclude that the 

servicemember’s conduct constituted an “initiation ‘rite of 

passage’ or congratulatory act”—as evidenced by the timing 

of the incident relative to the friend’s arrival at the unit—

then the servicemember could be convicted of hazing. Hence, 

we conclude that general intent is not sufficient to separate 

innocent conduct from wrongful conduct under AR 600-20. 

On the other hand, applying the Gifford mens rea template, we conclude that “recklessly” is a sufficient mens rea 

in this instance. Pursuant to this mens rea requirement, in 

order for an accused to be convicted under Article 92, UCMJ, 

for a violation of AR 600-20 para. 4-20, the accused must 

have consciously disregarded a known risk that his or her 

conduct would unnecessarily cause another military member 

or employee to suffer or be exposed to an activity that is cruel, abusive, oppressive, or harmful. We deem this standard 

to be sufficient to separate wrongful conduct from innocent 

conduct in prosecutions under AR 600-20 para. 4-20. 

First, recklessness is deemed to be consistent with moral 

culpability. See Gifford, 75 M.J. at 147–148. Second, a 

servicemember who honestly believes that an activity is not 

cruel, abusive, oppressive, or harmful could not be held 

criminally liable. And third, the requirement that the 

servicemember must consciously disregard a known risk

that the hazing conduct was cruel, abusive, oppressive, or 
United States v. Haverty, No. 16-0423/AR 

Opinion of the Court 

15 

harmful serves as a sufficient barrier separating innocent 

conduct from wrongful conduct under the pertinent provisions of AR 600-20. 

And finally, just as in Gifford, we conclude that intuiting 

a mens rea greater than “recklessness” in the instant case 

would cause us to improperly “step[] over the line that separates interpretation from amendment.” 75 M.J. at 147 (internal quotation marks omitted) (citation omitted). 

We therefore conclude that in the instant case the proper 

legal standard upon which the military judge was obligated 

to instruct the panel was whether Appellant acted “recklessly.” And, although it is not directly relevant to our determination in this case, we note with particular interest that in a 

2014 update to the regulation, the Secretary of the Army 

modified the provisions of AR 600-20 to specifically state 

that a mens rea of “recklessness” is required in order for a 

servicemember to be convicted of hazing. See supra note 4. 

B. Hazing instructions 

Because Appellant did not object to the military judge’s 

failure to instruct the members on a mens rea requirement 

for the offense of hazing under Article 92, UCMJ, we review 

this issue for plain error. See United States v. Payne, 73 M.J. 

19, 22–23 (C.A.A.F. 2014). Panel instructions are analyzed 

for plain error based on the law at the time of appeal. United 

States v. Harcrow, 66 M.J. 154, 159 (C.A.A.F. 2008) (citing 

Johnson v. United States, 520 U.S. 461, 468 (1997)). And 

here, although Elonis and Gifford were decided after Appellant’s trial, they were decided before Appellant’s appeal. 

Therefore, because Gifford was controlling precedent at the 

time of this appeal, and because the military judge did not 

instruct the panel using the required mens rea of “recklessly,” we hold first that there is error, and second, that the error is clear or obvious. 

Turning to the third prong of the plain error analysis, we 

note that Appellant has the burden of showing that the error 

had an unfair prejudicial impact on the members’ deliberations. United States v. Knapp, 73 M.J. 33, 37 (C.A.A.F. 

2014). Although it is a close question, we conclude that Appellant has met this burden. Not only did the military judge 

not instruct the panel that it must find Appellant acted with 
United States v. Haverty, No. 16-0423/AR 

Opinion of the Court 

16 

a mens rea of “recklessly,” the military judge did not instruct 

the panel that it needed to find any mens rea at all. This 

Court “presume[s] that the panel followed the instructions 

given by the military judge.” United States v. Custis, 65 M.J. 

366, 372 (C.A.A.F. 2007). Accordingly, based on the military 

judge’s instructions, we presume that the panel applied a 

general intent analysis12 whereby Appellant’s knowledge of 

his commission of the actus reus alone was sufficient to determine guilt. Because Appellant contested the issue of intent in this case,13 we conclude that the military judge’s error had an unfair prejudicial impact on the members’ 

deliberations. We therefore ultimately conclude that Appellant has demonstrated material prejudice to a substantial 

right.

IV. Decision 

We conclude that the military judge plainly erred in failing to instruct the members on the mens rea element for the 

offense of hazing under Article 92, UCMJ. Accordingly, the 

decision of the United States Army Court of Criminal Appeals is reversed as to the Specification of Charge I and the 

sentence. The remaining findings of guilty are affirmed. The 

record of trial is returned to the Judge Advocate General of 

the Army and a rehearing on the affected finding and sentence is authorized. 

 12 This point was conceded by the Government, which argued 

the military judge explicitly instructed an application of general 

intent. 

13 Appellant repeatedly stated that he was only offering the 

shots of alcohol to the victim and was not ordering her to drink 

them. He also testified that he did not intend to get SPC BB drunk 

and assumed she wanted to relax too. Further, defense counsel 

argued that the quantity of alcohol consumed by SPC BB was not 

excessive and not ordered by Appellant. 
United States v. Haverty, No. 16-0423/AR 

Judge STUCKY, concurring in part and dissenting in 

part. 

I agree with the majority that recklessness is the appropriate mens rea for the offense of violating the lawful general order prohibiting hazing and that the military judge’s 

failure to so instruct amounted to clear and obvious error. I 

disagree, however, with the majority’s conclusion that Appellant established that the error materially prejudiced his 

substantial rights. 

In United States v. Lopez, we adopted the Supreme 

Court’s interpretation of the prejudice prong of the plain error test: “the appellant ‘must show a reasonable probability 

that, but for the error, the outcome of the proceeding would 

have been different.’” __ M.J. __ , __ (4) (C.A.A.F. 2017) 

(quoting Molina-Martinez v. United States, 136 S. Ct. 1338, 

1343 (2016)). To my mind, Appellant failed to meet his burden to establish the prejudice prong of the plain error test, 

and “failure to establish any one of the prongs is fatal to a 

plain error claim.” United States v. Bungert, 62 M.J. 346, 

348 (C.A.A.F. 2006), quoted in Lopez, __ M.J. at __ (4). 

The facts, as thoroughly recounted by the majority, do 

not establish a reasonable probability that the result would 

have been different had the members been instructed on the 

appropriate mens rea. In fact, the opposite is the case. The 

evidence shows that Appellant’s conduct was not only reckless, but also purposeful. As part of what Appellant himself 

labeled an “initiation,” he purposefully required SPC BB to 

consume alcoholic beverages. And he purposefully required 

her to submit to a trauma assessment, during which he intentionally touched her vaginal area, despite her objections. 

Therefore, I would affirm his hazing conviction.