UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

HAIGHT, PENLAND, and WOLFE 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Staff Sergeant SAMUEL J. CHANCE 

United States Army, Appellant 

ARMY 20140072 

Headquarters, Joint Readiness Training Center and Fort Polk 

Rebecca K. Connally, Military Judge 

Colonel Samuel A. Schubert, Staff Judge Advocate (pretrial) 

Lieutenant Colonel James A. Barkei, Staff Judge Advocate (post-trial) 

For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain 

Patrick J. Scudieri, JA (on brief); Major Christopher D. Coleman, JA; Captain 

Patrick J. Scudieri, JA (on brief on supplemental assignment of error); Colonel Mary 

J. Bradley, JA; Major Christopher D. Coleman, JA; Captain Patrick J. Scudieri, JA 

(on reply brief on supplemental assignment of error); Colonel Mary J. Bradley, JA; 

Major Christopher D. Coleman, JA; Captain Cody Cheek, JA (motion for 

reconsideration). 

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G Courie, III, 

JA; Major Daniel D. Derner, JA; Captain Timothy C. Donahue, JA (on brief); 

Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain Timothy C. 

Donahue, JA (on brief on supplemental assignment of error); Colonel Mark H. 

Sydenham, JA; Major Daniel D. Derner, JA; Captain Samuel E. Landes, JA 

(opposition to motion for reconsideration). 

18 April 2016 

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MEMORANDUM OPINION ON RECONSIDERATION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge: 

A panel composed of officer and enlisted members sitting as a general courtmartial convicted appellant, contrary to his pleas, of one specification each of 

maltreatment, abusive sexual contact, assault consummated by battery, and unlawful 
CHANCE—ARMY 20140072 

2 

entry, in violation of Articles 93, 120, 128, and 134, Uniform Code of Military 

Justice, 10 U.S.C. §§ 893, 920, 928 and 134 (2012) [hereinafter UCMJ]. The panel 

sentenced appellant to a bad-conduct discharge, confinement for 180 days, and 

reduction to the grade of E-1. The convening authority approved the sentence as 

adjudged. 

On 26 February 2016, we issued a memorandum opinion in this case 

addressing four assigned errors. United States v. Chance, ARMY 20140072, 2016 

CCA LEXIS 110 (Army Ct. Crim. App. 26 Feb. 2016) (mem. op.). The first assigned 

error we addressed in that opinion concerned the application of the Supreme Court’s 

decision in United States v. Elonis, 135 S. Ct. 2001 (2015), to the offense of 

maltreatment under Article 93, UCMJ. On 8 March 2016, the United States Court of 

Appeals for the Armed Forces (C.A.A.F.) issued its opinion in United States v. 

Gifford, 75 M.J. __, 2016 CAAF LEXIS 219 (C.A.A.F. 8 Mar. 2016), interpreting 

Elonis as applied to a violation of Article 92, UCMJ. On 14 March 2016, appellant 

filed a motion requesting that we reconsider our decision in light of our superior 

court’s decision in Gifford. Four days after appellant requested reconsideration, the 

C.A.A.F. issued an opinion in United States v. Rapert, 75 M.J. __, 2016 CAAF 

LEXIS 234 (C.A.A.F. 18 Mar. 2016), interpreting the application of Elonis to Article 

134, UCMJ. 

The government opposed appellant’s motion for reconsideration. Given the 

substantial developments in applicable case law since we issued our original opinion 

on 26 February 2016, we granted appellant’s motion to reconsider on 1 April 2016.1

 

We now reissue that part of our opinion which addresses the application of Elonis to 

Article 93, UCMJ, in its entirety. The remaining portion of our 26 February 2016 

decision is undisturbed. 

FACTS 

Appellant was charged with maltreating Private E-2 (PV2) J.C. when he 

entered her room uninvited and began rubbing her shoulders without her consent. 

The surrounding circumstances of the offense are as stated in our 26 February 2016 

opinion. Chance, 2016 CCA LEXIS 110, at *2-4. 

DISCUSSION

Appellant argues the Supreme Court’s decision in Elonis requires that we set 

aside appellant’s maltreatment conviction. In Elonis, the Court addressed the mens 

rea required for violating 18 U.S.C. § 875(c) (“Interstate communications”). 135 S. 

Ct. 2001. 

 

1

 We commend appellate counsel for their excellent briefs in both requesting and 

opposing reconsideration. 
CHANCE—ARMY 20140072 

3 

We find the offense of maltreatment under Article 93, UCMJ, falls outside the 

Supreme Court’s decision in Elonis for two independent reasons: First, a higher 

level of mens rea than that already provided by the offense is not needed to separate 

wrongful conduct from innocent conduct. Second, the President’s explanation of an 

“objective” test is consistent with the statutory text. 

A. United States v. Elonis

In Elonis, the Supreme Court was faced with a criminal statute, 18 U.S.C. § 

875(c), that criminalized communicating a threat through interstate commerce, but 

was silent on the mens rea required to commit the offense. The Court stated that 

when a statute is silent on the scienter needed to commit the offense and a scienter 

requirement is needed to separate wrongful from innocent conduct, the mens rea 

required to commit the offense must be greater than simple negligence. Elonis, 135 

S. Ct. at 2010 (“When interpreting federal criminal statutes that are silent on the 

required mental state, we read into the statute only that mens rea which is necessary 

to separate wrongful conduct from otherwise innocent conduct.”) (quoting Carter v. 

United States, 530 U.S. 255, 269 (2000) (internal quotation marks omitted)). 

Elonis did not, however, mandate a scienter requirement for all offenses. 

Rather, Elonis (at most) creates a gap-filling rule that stands for the “presumption” 

of a scienter requirement when the offense is otherwise silent. Elonis, 135 S. Ct. at 

2010-11. The UCMJ contains numerous offenses that specifically require only a 

negligent mind. See UCMJ art. 110 (negligently hazarding a vessel); UCMJ art. 

120(b)(2) (sexual assault; the government must prove that an accused knew or 

reasonably should have known that the victim was unconscious, asleep, or incapable 

of consent); and UCMJ art. 87 (missing movement “by neglect”). With regards to 

Article 134, UCMJ, the statute specifically criminalizes “disorders and neglects” 

that are prejudicial to good order and discipline or which tend to discredit the 

service. UCMJ art. 134 (emphasis added).2

 For those offenses where the crime 

clearly states a negligence standard, as appellant conceded in his brief, Elonis is 

inapplicable. 

 

2

 As discussed below, the C.A.A.F. in Rapert interpreted the application of Elonis to 

the Article 134 offense of communicating threats. Rapert, 75 M.J. __, 2016 CAAF 

LEXIS 234. Our superior court found Elonis inapplicable to that offense but did not 

address the statutory text of Article 134, which criminalizes conduct amounting to a 

“neglect.” Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM],

pt. IV, ¶ 60.c.(2)(a) (“Prohibiting “disorders and neglects”) (emphasis added). 

Nonetheless, we continue to believe, and both parties appear to agree, that when a 

statute includes a specific “negligence” standard, Elonis is inapplicable. The 

Supreme Court’s entire decision in Elonis is predicated on the statutory absence of a 

mens rea requirement. The question in this case, therefore remains, does Article 93 

(maltreatment) prescribe a mens rea requirement? 
CHANCE—ARMY 20140072 

4 

B. United States v. Gifford and United States v. Rapert 

 Our superior court’s decisions in Gifford and Rapert answer two questions 

that were unanswered when we issued our original opinion: First, under what 

circumstances is Elonis applicable to an offense? Second, if Elonis is applicable, 

what level of mens rea does Elonis require be read into the offense? 

United States v. Rapert answered the first question. In Rapert, our superior 

court determined whether Elonis was applicable to the offense of communicating a 

threat under Article 134, UCMJ, as articulated by the President. 75 M.J. __, 2016 

CAAF LEXIS 234, at *2. While Elonis involved communicating a threat, the 

military offense of communicating a threat contains an element—absent in the 

federal offense—that the conduct be “wrongful.” Compare 18 U.S.C. § 875(c) with 

MCM, pt. IV, ¶ 110.b. In Rapert, our superior court found the requirement that the 

accused’s acts be “wrongful” was sufficient to place the military offense outside the 

ambit of Elonis. 75 M.J. __, 2016 CAAF LEXIS 234, at *11. Specifically, the court 

held the requirement that the accused’s actions be “‘wrongful,’ prevents the 

criminalization of otherwise innocent conduct and places the case at bar beyond the 

reach of Elonis.” Id. 

United States v. Gifford involved the application of Elonis to a conviction for 

the violation of a general order that specifically failed to state any mens rea 

requirement. 75 M.J. __, 2016 CAAF LEXIS 219, at *20. The decision was 

significant in two respects. First, based on our survey of relevant case law, this 

decision represented the first time an appellate court applied Elonis to an offense 

other than 18 U.S.C. § 875(c). We interpret this to mean that Elonis is a decision of 

general applicability.3

 Second, the court answered a question that specifically went 

unanswered by the Supreme Court in Elonis. What is the minimum mens rea required 

by the Supreme Court’s decision in Elonis? The C.A.A.F. determined that in a case 

where Elonis is applicable, the minimum mens rea is “recklessness.” Id. at *24-25. 

C. Is Application of Elonis to Article 93, UCMJ, Necessary to 

Distinguish “Innocent” Conduct from “Wrongful” Conduct? 

In Elonis, the Supreme Court limited its holding to circumstances where it is 

necessary to separate “wrongful” conduct from “innocent” conduct. 135 S. Ct. at 

2010 (“When interpreting federal criminal statutes that are silent on the required 

mental state, we read into the statute only that mens rea which is necessary to 

 

3

 In our initial decision, we took note of United States v. Kirsch for the proposition 

that as a case involving statutory interpretation, Elonis was limited to the 

interpretation of 18 U.S.C. § 875(c). No. 07-CR-304S (6), 2015 U.S. Dist. LEXIS 

168376, at *15 (W.D.N.Y. 16 Dec. 2015). Our superior court’s decision in Gifford, 

which applied Elonis to Article 92, UCMJ, requires that we discard that reasoning. 
CHANCE—ARMY 20140072 

5 

separate wrongful conduct from otherwise innocent conduct.”) (internal quotation 

marks and citations omitted) (emphasis added). Put differently, absent confusion 

about whether an offense criminalizes innocent conduct, there is no reason to read 

into the offense an elevated mens rea requirement. 

Thus, while an elevated mens rea requirement is necessary to discriminate 

between innocent speech and wrongful speech, no such requirement is needed with 

regards to the offense of maltreatment. The statute at issue in Elonis, 18 U.S.C. § 

875(c), regulates the conduct between civilians (i.e., threats to kidnap or injure) who 

have no special duty towards (or authority over) one another. Article 93, UCMJ, on 

the other hand delineates the outer limit of conduct by leaders of the military who 

have been entrusted with the care of their subordinates. It is wrongful to “maltreat,” 

“oppress,” or to be “cruel” towards a subordinate. MCM, pt. IV, ¶ 17.b. 

This is consistent with the C.A.A.F.’s decision in Rapert. In that case, (which 

also involved issues of threats and free speech), the court found the element of 

“wrongful” to be sufficient to remove the offense from the application of Elonis. 75 

M.J. __, 2016 CAAF LEXIS 234, at *16. As noted above, in Elonis, the Supreme 

Court reemphasized that in the absence of a prescribed “mental state, we read into 

the statute only that mens rea which is necessary to separate wrongful conduct from 

otherwise innocent conduct.” 135 S. Ct. at 2010 (citations and internal quotation 

marks omitted). It borders on the tautological that if the government must prove 

beyond a reasonable doubt that conduct is “wrongful,” there is no difficulty in 

separating “wrongful” from “innocent” conduct. 

If the inclusion in Rapert of “wrongful” in an Article 134, UCMJ, offense is 

sufficient to remove the offense from the application of Elonis, than the words of 

criminality of “maltreat” “oppress” and “cruelty” are more than sufficient to remove 

Article 93, UCMJ, from application of Elonis. 

This would be true even without considering that the UCMJ “cannot be equated 

to a civilian criminal code.” Parker v. Levy, 417 U.S. 733, 749 (1974). In Parker v. 

Levy, the Supreme Court specifically noted that the offense of “maltreatment” 

criminalizes conduct that “in civilian life is not subject to criminal penalties.” Id. 

The offense of maltreatment strikes directly at the ability to maintain a disciplined 

force, and Congress’s ability to regulate the same. See U.S. Const. art. I, § 8. In 

other words, the Supreme Court has specifically noted that when it comes to the 

offense of maltreatment—even if we were to assume Elonis were otherwise 

applicable—direct comparisons to civilian criminal codes are inappropriate. Unlike 
CHANCE—ARMY 20140072 

6 

Gifford (which involved an offense directly comparable to civilian offenses), 

maltreatment is a unique military offense.4 

In short, we find Elonis inapplicable because no higher mens rea is required 

to separate innocent from wrongful conduct; or, as phrased under Article 93, 

distinguishing between “treatment” and “maltreatment.” A broader view helps to 

understand why the offense of communicating a threat in violation of 18 U.S.C. § 

875(c) is fundamentally different than the offense of maltreatment under Article 93, 

UCMJ. The former criminalizes speech (which would otherwise be protected by the 

First Amendment).5 The latter criminalizes behavior of someone who has been 

specifically entrusted with authority over a subordinate. 

D. Congress and the President Have Intended That 

Maltreatment be Determined by an Objective Standard

The President has explained the offense of maltreatment as follows: 

Nature of act. The cruelty, oppression, or maltreatment, 

although not necessarily physical, must be measured by an 

objective standard. . . .

MCM, pt. IV, ¶ 17.c.(2) (emphasis added). While the “‘[m]anual explanations of 

codal offenses are not binding on this Court,’ they are persuasive indications of how 

the President, as head of the Executive Branch of Government, perceives an offense, 

including limitations on the Executive power that are not required by the Code or 

other applicable law.” United States v. Miller, 47 M.J. 352, 356 (C.A.A.F. 1997) 

(quoting United States v. Gonzalez, 42 M.J. 469, 474 (C.A.A.F. 1995)).

Here, the President’s explanation of the offense is entirely consistent with the 

statutory definition of the offense. A person is guilty of maltreatment when he 

engages in “cruelty toward” or commits “oppression or maltreatment of” a person 

 

4

 Were it otherwise, application of Elonis might have significant ramifications 

throughout the UCMJ. Negligence not amounting to culpable negligence (e.g., “I 

forgot” or “I overslept”) would be a complete defense to violations of Article 86(1) 

(failing to go to appointed place of duty), Article 92(2) (disobedience of other 

orders), and Article 92(3) (dereliction of duty), among others. We do not read 

Gifford as intending such a far reaching and potentially troublesome result. 

5

 The Supreme Court explicitly avoided addressing the First Amendment issues that 

may arise from the criminalization of negligent speech. Elonis, 135 S. Ct. at 2012. 

However, one does not have to read the opinion too deeply to see the First 

Amendment issues that would arise had the Court decided the case differently. The 

offense of maltreatment under Article 93, UCMJ, is unburdened by such concerns. 
CHANCE—ARMY 20140072 

7 

“subject to his orders.” UCMJ art. 93 (emphasis added). The focus of this offense 

is that of the objective act and its effect rather than on the subjective intent of the 

actor. In other words, as the President’s definition is convincing, this is not a 

circumstance where the offense is silent on the mens rea. There is no gap for Elonis

to fill. 

CONCLUSION 

The finding of guilty to the Specification of Charge V is AFFIRMED. The 

remaining findings and the sentence affirmed by our initial 26 February 2016 

decision are again AFFIRMED for the reasons stated in that opinion. Chance, 2016 

CAAF LEXIS 110, at *20-21. 

Senior Judge HAIGHT and Judge PENLAND concur. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: