UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

CAMPANELLA, FEBBO, and PENLAND 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E1 STEVEN M. TUCKER 

United States Army, Appellant 

ARMY 20150634 

Headquarters, United States Army Cadet Command and Fort Knox 

S. Charles Neill, Military Judge 

Colonel E. Edmond Bowen, Jr., Staff Judge Advocate 

For Appellant: Colonel Mary J. Bradley, JA; Major Andres Vazquez, Jr., JA; 

Captain Amanda R. McNeil Williams, JA (on brief). 

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

JA; Major Cormac M. Smith, JA; Captain John Gardella, JA (on brief). 

28 October 2016 

---------------------------------- 

OPINION OF THE COURT 

----------------------------------

CAMPANELLA, Senior Judge: 

In this case, we explore whether the military judge erred in accepting the 

appellant’s plea to a general article violation for providing alcohol to a person under 

the age of twenty-one, premised upon the mens rea of negligence. Finding no error, 

we affirm. Because Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 

(2012) [hereinafter UCMJ], specifically criminalizes “disorders and neglects” that 

are prejudicial to good order and discipline or which tend to discredit the service, we 

find the Article 134, UCMJ, offense falls outside the Supreme Court’s decision in 

United States v. Elonis, 135 S. Ct. 2001 (2015). 

 

A military judge, sitting as a general court-martial convicted appellant, 

pursuant to his pleas, of one specification of conspiracy to obstruct justice, one 

specification of sexual assault, two specifications of unlawfully providing alcohol to 

a person under the age of twenty-one, and one specification of obstruction of justice 

in violation of Articles 81, 120, and 134, UCMJ. The military judge sentenced 

appellant to a bad-conduct discharge and confinement for forty-two months. In 

accordance with a pretrial agreement, the convening authority approved only so much 
TUCKER—ARMY 20150634 

2

of the sentence as provided for a bad-conduct discharge and thirty-six months 

confinement. 

Appellant’s case is before us for review pursuant to Article 66(c), UCMJ. 

Appellant raises two assignments of error, one of which requires discussion but no 

relief. Specifically, appellant avers his plea was improvident because, during the 

providence inquiry, the military judge instructed on the mens rea of negligence, 

when he should have instructed on the mens rea of recklessness, as it relates to the 

Article 134, UCMJ offense of providing alcoholic beverages to persons under 

twenty-one years of age. Appellant also raises matters personally pursuant to United 

States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) which, upon consideration, we find 

have no merit. 

BACKGROUND 

 In Specification 1 of Charge IV, appellant was charged with and pleaded 

guilty to providing alcohol to Private (PV2) TG, a person under the age of twentyone. The specification alleged a general disorder under Article 134, UCMJ. During 

the providence inquiry, appellant stated he gave alcohol to anyone at the party 

without inquiring as to their age.1

 He also stated he knew some in the barracks 

were under twenty-one years of age but he had no reason to believe PV2 TG was 

under the age of twenty-one. 

 Upon hearing this information, the military judge inquired into the 

government’s theory of the case and asked defense counsel whether appellant was 

provident to this specification. Trial counsel asserted that the Article 134, UCMJ, 

specification was a general intent crime and hence, appellant’s plea was provident 

based on his own description of his mental state. Defense counsel agreed with the 

government that the Article 134 specification was a general intent crime and 

appellant could be criminally liable for “deliberate ignorance” of PV2 TG’s age. 

 With that, the military judge instructed appellant that “negligence is the lack 

of that degree of care that a reasonably prudent person would have exercised under 

the same or similar circumstances.” Appellant agreed he was negligent by 

providing PV2 TG alcohol without ascertaining her age. 

 

LAW AND DISCUSSION 

This court reviews a military judge’s decision to accept a plea for an abuse of 

discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). It is an 

 

1

 During the plea inquiry as to Specification 2 of Charge IV, alleging a similar 

Article 134, UCMJ, violation by providing alcohol to PV2 TM, appellant 

acknowledged he knew PV2 TM was under the age of twenty-one. 
TUCKER—ARMY 20150634 

3

abuse of discretion for a military judge to accept a guilty plea without an adequate 

factual basis to support it . . . [or] if the ruling is based on an erroneous view of the 

law.” United States v. Weeks, 71 M.J. 44, 46 (C.A.A.F. 2012) (citation omitted). 

 Appellant argues the military judge’s reliance on a negligence standard 

renders his plea to Specification 1 of Charge IV improvident. Appellant, in reliance 

on United States v. Elonis, 135 S. Ct. 2001 (2015), and United States v. Gifford, 75 

M.J. 140 (C.A.A.F. 2016), asserts the language of Article 134, UCMJ omits a mens 

rea element, and therefore, the appropriate mens rea standard is recklessness. 

While the government concedes this point, we disagree, as we find Elonis and 

Gifford inapplicable to the facts of this case. 

What mens rea applies to Article 134, UCMJ, is a question of law which we 

review de novo. United States v. Serianne, 69 M.J. 8, 10 (C.A.A.F. 2010). 

 In United States v. Elonis, the Supreme Court was faced with interpreting a 

criminal statute, 18 U.S.C. § 875(c), that was silent on the mens rea required to 

commit the offense. The Supreme Court emphasized that “[w]hen 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.” 135 S. Ct. at 2010 (quoting Carter v. United States, 

530 U.S. 255, 269 (2000)) (internal quotation marks omitted). The Court concluded 

that when a statute is silent in this regard, the mens rea required to commit the 

offense must be greater than simple negligence. Elonis, 135 S. Ct. at 2010.2

In United States v. Gifford, the Court of Appeals for the Armed Forces 

(CAAF) applied Elonis to a violation of a lawful general order, Article 92, UCMJ, 

where the order failed to state any mens rea requirement and determined the 

minimum mens rea is “recklessness.” 75 M.J. at 148 (C.A.A.F. 2015). Under this 

mens rea standard as it applies to Article 92, UCMJ, lawful conduct, such as 

providing alcohol to one’s friends or guests while honestly believing them to be of 

legal age, would be excluded from proscription under the general order. The CAAF 

decision, however, did not apply an analysis of the statutory language of Article 

134 itself which proscribes “neglect[ful]” conduct.3

 

The Supreme Court’s decision in Elonis and the CAAF’s decision in Gifford are 

predicated on the absence of a statutory mens rea requirement. The Supreme Court 

 

2

 Thus the offenses of missing movement (Article 87, UCMJ) and improper 

hazarding of vessel (Article 110, UCMJ) may be committed by simple negligence. 

3

 Consistent with this statutory construct, the President has, for example, under his 

Article 56 authority included the Article 134 offense of negligent homicide. See

U.S. v. Bivens, 49 M.J. 328 (C.A.A.F. 1998). 
TUCKER—ARMY 20150634 

4

created a “gap-filling rule” for a mens rea requirement when an offense is otherwise 

silent. Elonis, 135 S. Ct. at 2010-11. However, Article 134, UCMJ, is not silent, for 

it specifically criminalizes “disorders and neglects” that are prejudicial to good order 

and discipline, or which tend to discredit the service. UCMJ art. 134. For those 

offenses where the crime clearly states a negligence standard, Elonis is inapplicable. 

In United States v. Rapert, our superior court determined Elonis was not 

applicable to the offense of communicating a threat under Article 134, UCMJ, as 

articulated by the President. 75 M.J.164 (C.A.A.F. 2015). 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 Manual for Courts-Martial, United States (2012 ed.) 

[hereinafter MCM], pt. IV, ¶ 110.b. In Rapert, our superior court found the 

requirement that the accused's acts be “wrongful” put the offense outside the 

holding in Elonis. 75 M.J.at 168. Although Rapert did not discuss the statutory 

language of Article 134, nothing in the court’s reasoning would preclude our 

analysis here. 

In short, we find the offense of providing alcohol to a person under the age of 

twenty-one under Article 134, UCMJ, falls outside the Supreme Court’s decision in 

Elonis. Article 134, UCMJ, specifically criminalizes “disorders and neglects” that 

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

MCM, pt. IV, ¶ 60.c.(2). For those offenses where the statute clearly includes a 

negligence standard, Elonis is inapplicable. Accordingly, we find the military judge 

did not abuse his discretion in accepting appellant’s plea of guilty to Specification 1 

of Charge IV. 

CONCLUSION 

 The findings and sentence are AFFIRMED. 

Judge FEBBO and Judge PENLAND concur. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: