This opinion is subject to revision before publication 

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________ 

UNITED STATES 

Appellee 

v. 

Steven M. TUCKER, Private 

United States Army, Appellant 

No. 18-0254 

Crim. App. No. 20150634 

Argued October 24, 2018—Decided November 29, 2018 

Military Judge: S. Charles Neill 

For Appellant: Captain Timothy G. Burroughs (argued); 

Lieutenant Colonel Christopher Daniel Carrier and Major 

Julie L. Borchers (on brief). 

For Appellee: Captain Catharine M. Parnell (argued); 

Lieutenant Colonel Eric K. Stafford, Major Hannah E. 

Kaufman, Major Cormac M. Smith, and Captain Jessika 

M. Newsome (on brief); Colonel Steven P. Haight. 

Judge OHLSON delivered the opinion of the Court, in 

which Chief Judge STUCKY, and Judges RYAN, 

SPARKS, and MAGGS, joined. 

_______________

Judge OHLSON delivered the opinion of the Court. 

A military judge sitting alone as a general court-martial 

convicted Appellant, pursuant to his pleas, of one specification of conspiracy to obstruct justice, one specification of aggravated sexual assault, two specifications of providing alcohol to minors, and one specification of obstruction of 

justice, in violation of Articles 81, 120, and 134, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 920, 934 

(2012). The military judge sentenced Appellant to a badconduct discharge and confinement for forty-two months. In 

accordance with the pretrial agreement, the convening authority approved only so much of the sentence as provided 

for a bad-conduct discharge and confinement for thirty-six 

months. 

The United States Army Court of Criminal Appeals 

(CCA) affirmed the findings and sentence. However, we set 
United States v. Tucker, No. 18-0254/AR 

Opinion of the Court 

2 

aside the CCA’s decision and remanded for a new Article 66, 

UCMJ, 10 U.S.C. § 866 (2012), review to evaluate the case in 

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

United States v. Haverty, 76 M.J. 199 (C.A.A.F. 2017). United States v. Tucker, 76 M.J. 257 (C.A.A.F. 2017) (per 

curiam). On remand, a divided CCA affirmed the findings 

and sentence. We then granted review on the following issue: 

Whether the Army Court erred in holding that the 

minimum mens rea required under clauses 1 and 2 

of Article 134, UCMJ, to separate wrongful from 

innocent conduct is simple negligence. 

United States v. Tucker, 78 M.J. 58 (C.A.A.F. 2018) (order 

granting review). 

We hold that the minimum mens rea for the Article 134, 

UCMJ, offense of providing alcohol to underage individuals 

is recklessness. We further hold that because the military 

judge incorrectly instructed Appellant on a negligence mens 

rea during the Care1 inquiry, Appellant’s guilty plea to one 

specification of providing alcohol to an underage individual 

is not provident. Accordingly, we reverse the decision of the 

CCA. 

I. 

Appellant admitted in court that as “one of the few Soldiers in the group [who] was old enough to purchase alcohol,” he bought a large bottle of licorice-flavored liquor for a 

Fort Knox, Kentucky, barracks party involving approximately ten soldiers. Appellant then shared this liquor with Private (PV2) TMG who was under the legal age to drink alcohol. 

In addition to other offenses, Appellant was charged 

with, and pleaded guilty to, one specification of providing 

alcohol to an underage individual—PV2 TMG—in violation 

of Article 134, UCMJ.2 At the plea hearing, the military 

                                                            1 United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969). 

2 Appellant also entered a guilty plea to a second Article 134, 

UCMJ, specification of providing alcohol to a different underage 

individual. In regard to that particular specification, the military 

judge instructed Appellant that the mens rea of “knowingly” ap-
United States v. Tucker, No. 18-0254/AR 

Opinion of the Court 

3 

judge instructed Appellant that this general article offense 

has the following two elements: 

One, that on or about 21 June 2014, at or near 

Fort Knox, Kentucky, you unlawfully provided Private [TMG], a person under the age of 21, alcoholic 

beverages; and 

Two, that under the circumstances, your conduct was to the prejudice of good order and discipline in the armed forces and of a nature to bring 

discredit upon the armed forces. 

After Appellant stated he did not know—and had no reason to believe—that PV2 TMG was under the age of twentyone, the military judge sought clarification from defense and 

government counsel about why Appellant’s plea was provident to the offense as charged. Counsel offered various theories regarding the applicable mens rea, including general 

intent, deliberate ignorance, and strict liability. When the 

military judge continued the providence inquiry, Appellant 

provided the additional following facts: he did not ask PV2 

TMG her age; he was giving alcohol to everyone at the party 

and not checking their identification cards; he believed the 

legal drinking age was twenty-one years old; and there were 

“quite a few people under 21” living in the barracks. 

The military judge eventually concluded that the mens 

rea for the charged offense was negligence and instructed 

Appellant as follows: “‘Negligence’ is the lack of that degree 

of care that a reasonably prudent person would have exercised under the same or similar circumstances.” Appellant 

then admitted that he was negligent in providing alcohol to 

PV2 TMG because he did not ask or verify her age. Following Appellant’s admissions that his conduct was prejudicial 

to good order and discipline and of a nature to bring discredit on the armed forces, the military judge accepted Appellant’s plea and entered a finding of guilty for the putative 

                                                                                                                                    

plied to the offense. Specifically, the military judge told Appellant: 

“If you didn’t know at the time that he was under the age of 21, 

you are not provident or guilty of this offense.” The military judge 

then accepted Appellant’s guilty plea after Appellant admitted to 

knowing that this individual was underage. This specification is 

not at issue in this appeal. 
United States v. Tucker, No. 18-0254/AR 

Opinion of the Court 

4 

offense of negligently providing alcohol to an underage individual in violation of Article 134, UCMJ. 

II. 

“We review a military judge’s acceptance of a guilty plea 

for an abuse of discretion and questions of law arising from 

the guilty plea de novo.” United States v. Simpson, 77 M.J. 

279, 282 (C.A.A.F. 2018). 

A. 

We first turn to the legal question of what mens rea applies to the Article 134, UCMJ, offense of providing alcohol 

to a minor. See United States v. Gifford, 75 M.J. 140, 142 

(C.A.A.F. 2016) (stating that the question of whether a mens 

rea requirement applies is a question of law). 

The starting point for our analysis is, of course, the plain 

language of the statute. Haverty, 76 M.J. at 203–04. However, the text of Article 134, UCMJ, does not explicitly contain 

a mens rea requirement. See Tucker, 76 M.J. at 258. Moreover, there is no basis for us to conclude that Congress impliedly sought to purposefully omit a mens rea requirement 

for the Article 134, UCMJ, offense of providing alcohol to a 

minor. See Gifford, 75 M.J. at 144–46 (explaining why serving alcohol to a minor is not a public welfare offense). 

Lacking any explicit or implicit guidance from Congress, 

we are required to read into the statute the lowest level of 

mens rea that “is necessary to separate wrongful conduct 

from otherwise innocent conduct.” Elonis, 135 S. Ct. at 2010 

(citation omitted) (internal quotation marks omitted). In doing so, we employ “broadly applicable scienter requirements.” Id. at 2009 (citation omitted) (internal quotation 

marks omitted). 

On appeal before this Court, the parties have offered two 

possible mens rea for the Article 134, UCMJ, offense of 

providing alcohol to minors; the Government argues for negligence and Appellant proposes recklessness. In resolving 

this issue, we begin by noting that the Supreme Court “ha[s] 

long been reluctant to infer that a negligence standard was 

intended in criminal statutes.” Elonis, 135 S. Ct. at 2011 (citation omitted) (internal quotation marks omitted). Indeed, 

this Court has recognized in the context of Article 134, 
United States v. Tucker, No. 18-0254/AR 

Opinion of the Court 

5 

UCMJ, that it is inappropriate to infer a negligence mens 

rea “in the absence of a statute or ancient usage.” United 

States v. Manos, 8 C.M.A. 734, 735, 25 C.M.R. 238, 239 

(1958) (citation omitted) (internal quotation marks omitted); 

see also Parker v. Levy, 417 U.S. 733, 754 (1974) (explaining 

that Article 134’s “very broad reach” is narrowed by military 

authorities and by “less formalized [military] custom and 

usage”). 

In the instant case, the Government has failed to identify 

any statute, precedent, custom, or ancient usage that would 

cause us to conclude that negligence is the proper standard 

for the Article 134, UCMJ, offense of providing alcohol to 

minors. Therefore, we conclude that negligence is not the 

proper mens rea here.3

Although a negligence mens rea is insufficient, we conclude that a recklessness mens rea does sufficiently separate 

wrongful conduct from otherwise innocent conduct. In fact, it 

is the lowest level of mens rea that does so. See Gifford, 

75 M.J. at 146–48. Specifically, a servicemember who provides alcohol to someone he honestly—but mistakenly—

believes to be of legal drinking age will not be subject to conviction, but a servicemember who provides alcohol to someone while consciously disregarding the known risk will be 

subject to conviction.4 Accordingly, we hold that recklessness 

is the proper mens rea for the Article 134, UCMJ, offense of 

providing alcohol to minors. 

                                                            3 To be clear, we are not holding that negligence can never be 

a mens rea for an Article 134, UCMJ, offense. See United States v. 

Kick, 7 M.J. 82, 84 (C.M.A. 1979) (explaining that negligent homicide is properly punishable under Article 134, UCMJ, in part because of the “‘special need in the military’” given “‘the extensive 

use, handling and operation in the course of official duties of such 

dangerous instruments as weapons, explosives, aircraft, vehicles, 

and the like’” (citation omitted)). We simply hold that negligence is 

an insufficient mens rea with respect to this particular Article 

134, UCMJ, offense of providing alcohol to minors. 

4 Contrary to the Government’s argument, we have no basis to 

conclude that this modest level of mens rea will unduly impinge 

on a commander’s ability to impose good order and discipline. For 

instance, commanders may address purely negligent conduct 

through administrative action. 
United States v. Tucker, No. 18-0254/AR 

Opinion of the Court 

6 

B. 

Because recklessness is the appropriate mens rea, the 

military judge erred when he instructed Appellant on the 

mens rea of negligence during Appellant’s plea colloquy. 

This error constitutes a substantial basis in law to question 

the providency of Appellant’s guilty plea to negligently 

providing alcohol to a minor, in violation of Article 134, 

UCMJ. See Simpson, 77 M.J. at 282. As we have explained, 

there is no such Article 134, UCMJ, offense, and an accused 

cannot plead “guilty to conduct that was not criminal.” United States v. Ferguson, 68 M.J. 431, 433 (C.A.A.F. 2010); see 

also Article 45(a), UCMJ, 10 U.S.C. § 845(a) (2012) (stating 

that if an accused “has entered the plea of guilty improvidently,” the military judge “shall proceed as though he ha[s] 

pleaded not guilty”). The military judge therefore abused his 

discretion in accepting Appellant’s plea to negligently 

providing alcohol to a minor.5 Simpson, 77 M.J. at 282 (explaining that “[a] ruling based on an erroneous view of the 

law is ... an abuse of discretion”). 

III. 

The decision of the United States Army Court of Criminal Appeals is reversed as to Specification 1 of Charge IV 

and the sentence. The finding of guilty to Specification 1 of 

Charge IV and the sentence are set aside. The record of trial 

                                                            5 Appellant’s admission to conduct that facially satisfies a 

mens rea of recklessness does not save this guilty plea because the 

military judge instructed Appellant only on a negligence mens rea 

requirement and, as noted above, there is no Article 134, UCMJ, 

offense of negligently providing alcohol to minors. See United 

States v. Thomasson, 50 M.J. 179, 180 (C.A.A.F. 1999). Furthermore, (a) unlike in those cases where a military judge “fail[ed] to 

define correctly a legal concept or [failed to] explain[] each and 

every element of the charged offense to the accused in a clear and 

precise manner,” here the military judge affirmatively misstated

the applicable legal concepts and the elements of the charged offense, and (b) the record does not reflect that despite the erroneous explanation of the mens rea, Appellant otherwise “knew the 

[proper] elements, admitted them freely, and pleaded guilty because he was guilty.” United States v. Murphy, 74 M.J. 302, 308 

(C.A.A.F. 2015) (third alteration in original) (emphasis added) (internal quotation marks omitted) (quoting United States v. Jones, 

34 M.J. 270, 272 (C.M.A. 1992)). 
United States v. Tucker, No. 18-0254/AR 

Opinion of the Court 

7 

is returned to the Judge Advocate General of the Army for 

remand to the Court of Criminal Appeals. That court may 

either dismiss Specification 1 of Charge IV and reassess the 

sentence, or it may order a rehearing.