                       UNITED STATES, Appellee

                                    v.

             Alexander M. WATSON, Private First Class
                   U.S. Marine Corps, Appellant

                              No. 11-0523

                   Crim. App. No. NMCCA 201000263

       United States Court of Appeals for the Armed Forces

                       Argued December 12, 2011

                        Decided March 20, 2012

ERDMANN, J., delivered the opinion of the court, in which STUCKY
and RYAN, JJ., and EFFRON, S.J., joined. BAKER, C.J., filed a
separate opinion concurring in the result.

                                 Counsel

For Appellant:    Major Jeffrey R. Liebenguth, USMC (argued).

For Appellee: Captain Robert E. Eckert Jr., USMC (argued);
Colonel Kurt J. Brubaker, USMC, and Brian K. Keller, Esq. (on
brief); Colonel Louis J. Puleo, USMC.

Military Judge:   P. S. Rubin


       This opinion is subject to revision before final publication.
United States v. Watson, No. 11-0523/MC

       Judge ERDMANN delivered the opinion of the court.

       Pursuant to his pleas, Watson was convicted by a military

judge sitting alone at a general court-martial of fraudulent

enlistment, absence without leave, communicating a threat,

possessing a loaded firearm in his vehicle, possessing a weapon

with intent to harm, indecent language, and possession of child

pornography, in violation of Articles 83, 86, and 134 of the

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 883, 886,

934.   The convening authority approved the adjudged sentence of

confinement for forty-two months, reduction to E-1, forfeiture

of all pay and allowances, and a bad-conduct discharge.    The

United States Navy-Marine Corps Court of Criminal Appeals (CCA)

affirmed the findings and sentence.   United States v. Watson,

No. NMCCA 201000263, 2011 CCA LEXIS 61, at *13, 2011 WL 1127055,

at *6, (N-M. Ct. Crim. App. Mar. 29, 2011) (unpublished).

       We granted review of this case to determine if an applicant

who provides false information when enlisting in the military

commits the offense of fraudulent enlistment under Article 83,

UCMJ, only when the false information pertains to a matter that

would constitute an absolute bar to enlistment.   We also granted

review of an issue arising under United States v. Fosler, 70

M.J. 225 (C.A.A.F. 2011), as to whether two specifications

alleging offenses under Article 134 stated an offense where




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United States v. Watson, No. 11-0523/MC

neither specification included the terminal elements.1       We hold

that an applicant commits the offense of fraudulent enlistment

when he or she provides false information about matters that

would constitute either an absolute bar to enlistment or would

constitute a bar to enlistment without a waiver from the service

branch.      We further hold that the specifications alleging the

offenses of communicating a threat and indecent language under

Article 134, which did not contain the terminal elements,

constituted error, but this error was not prejudicial to

Watson’s substantial rights.     United States v. Ballan, 71 M.J.

28, 30 (C.A.A.F. 2012).

                               Background

       Watson was treated at an inpatient mental health facility

following a suicide attempt when he was thirteen years old.

Four years later, Watson enlisted in the U.S. Marine Corps.       The

Marine Corps has established recruiting standards that bar an


1
    We granted review of the following issues:

       I.    Whether Appellant’s guilty plea to fraudulent
             enlistment was provident.

       II.    Whether an Article 134 Clause 1 or 2
              specification that fails to expressly allege
              either potential terminal element states an
              offense under the Supreme Court’s holdings in
              United States v. Resendiz-Ponce and Russell v.
              United States, and this court’s recent opinions
              in Medina, Miller and Jones.

United States v. Watson, 70 M.J. 269 (C.A.A.F. 2011) (order
granting review). Issue II was granted without briefs.

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United States v. Watson, No. 11-0523/MC

applicant with a history of psychiatric hospitalization from

enlisting unless the service has granted a waiver.   Dep’t of the

Navy, Marine Corps Order P1100.72C, Military Personnel

Procurement Manual, vol. 2, Enlisted Procurement para. 3271

3.f.(7)(c), at 3-84 to -85 (June 18, 2004).   When Watson

completed his enlistment paperwork he answered “no” to the

question:   “Have you ever been a patient (whether or not

formally committed) in any institution primarily devoted to the

treatment of mental, emotional, psychological or personality

disorders?”   Watson’s misrepresentation came to light during the

investigation into the other offenses of which he was convicted.

     In his stipulation of fact Watson admitted that he

intentionally provided false information on the enlistment form.

He also stated that he believed this was “important information

that could have potentially disqualified [him] from enlisting in

the Marine Corps depending on the Doctor’s evaluation of [his]

mental health,” but he did not know if he would have been

allowed to enlist had he told the truth.

     During his plea colloquy with the military judge, Watson

again admitted he intentionally provided false information when

he answered “no” to the question about being treated in a mental

health facility because he hoped it would help him enlist in the

Marines and he assumed answering “yes” would either disqualify

him or “severely hinder” his chances of enlisting.   He also



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United States v. Watson, No. 11-0523/MC

stated he believed the recruiter relied upon the false

information Watson provided and that the truth “may have

impacted [his] ability to enlist” in the Marines.   In affirming

the findings and sentence, the CCA stated Watson’s deliberate

concealment of his mental health history, followed by his

enlistment and receipt of pay and allowances, established a

sufficient factual and legal basis for the military judge to

accept Watson’s pleas.   Watson, 2011 CCA LEXIS 61, at *8, 2011

WL 1127055, at *3.

                            Discussion

     While this court generally examines a military judge’s

decision to accept a guilty plea for abuse of discretion, where

the issue appealed involves pure questions of law, we utilize a

de novo review. United States v. Inabinette, 66 M.J. 320, 322

(C.A.A.F. 2008).

Fraudulent Enlistment Specification

     Before this court Watson argues that the offense of

fraudulent enlistment pertains only to material matters that

constitute an absolute bar to enlistment.   Thus, for his guilty

plea to be provident he needed to admit that, but for his

misrepresentation, his enlistment would have been rejected.

Since Watson’s misrepresentation concerned a matter that could

have been waived by the service –- prior inpatient psychiatric

treatment –- he argues that it did not constitute an absolute



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United States v. Watson, No. 11-0523/MC

bar to enlistment and therefore did not meet the criteria for

fraudulent enlistment under Article 83.

     The Government responds that absent a waiver, the Marine

Corps will not enlist those who have resided in a mental health

facility.   The offense of fraudulent enlistment includes matters

that would constitute both an absolute bar to enlistment and a

bar subject to waiver at the discretion of the service.   Here

Watson’s deliberate lie about his residence in a mental health

facility procured his enlistment.    The Government notes that

Watson’s interpretation of the statute would create an absurd

result, where an applicant could lie about his or her

qualifications to avoid the waiver process and not be held

liable for that fraud.

     As noted by the parties, the service appellate courts have

reached different interpretations on this issue.   In two cases

from the 1950s, the Air Force and the Navy Boards of Review

interpreted the offense of fraudulent enlistment to apply only

to matters that would constitute an absolute bar to enlistment.

See United States v. Stevens, 7 C.M.R. 838, 841 (A.F.B.R. 1953);

United States v. Loyd, 7 C.M.R. 453, 454 (N.B.R. 1953).     In more

recent years, however, both the Air Force and the Navy-Marine

Corps Courts of Criminal Appeals have ruled that the statute

applies to any information that would prevent enlistment,

whether it concerns an absolute bar or a bar absent a waiver.



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United States v. Watson, No. 11-0523/MC

United States v. Nazario, 56 M.J. 572, 579 (A.F. Ct. Crim. App.

2001), set aside on other grounds by United States v. Nazario,

58 M.J. 19 (2002); United States v. Henry, No. 200200009, 2003

CCA LEXIS 203, at *7-*8, 2003 WL 22068752, at *3 (N-M. Ct. Crim.

App. Aug. 26, 2003) (unpublished).

     The elements of fraudulent enlistment or appointment,

Article 83, UCMJ, are:

     (a) That the accused was enlisted or appointed in an
     armed force;

     (b) That the accused knowingly misrepresented or
     deliberately concealed a certain material fact or
     facts regarding qualifications of the accused for
     enlistment or appointment;

     (c) That the accused’s enlistment or appointment was
     obtained or procured by that knowingly false
     representation or deliberate concealment; and

     (d) That under this enlistment or appointment that
     accused received pay or allowances or both.

Manual for Courts-Martial, United States pt. IV, para. 7.b.

(2008 ed.) (MCM). Watson does not challenge that he made a

misrepresentation or that the misrepresentation was material.

He bases his challenge on subsection (c) and argues that only

matters concerning an absolute bar to enlistment can provide a

basis for a fraudulent enlistment charge and for his plea to be

provident he had to admit that his misrepresentation pertained

to a matter that constituted an absolute bar to enlistment.

Watson also asserts that because we do not know whether the

Marine Corps would have issued a waiver to the regulatory


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United States v. Watson, No. 11-0523/MC

absolute bar to enlistment –- his inpatient psychiatric care --

we cannot know and the government cannot assert that the

enlistment “was” so obtained.

     “[W]hen the statute’s language is plain, the sole function

of the courts -- at least where the disposition required by the

text is not absurd -- is to enforce it according to its terms.”

Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530

U.S. 1, 6 (2000) (quoting United States v. Ron Pair Enterprises,

Inc., 489 U.S. 235, 241 (1989) (citation and quotation marks

omitted).   The plain language of Article 83 states that an

accused must make a “knowingly false representation or

deliberate concealment as to his qualifications.”   Based on this

language we agree with the Air Force Court of Criminal Appeals’

analysis when they addressed this issue in United States v.

Nazario, 56 M.J. at 579:

     We reject the appellant’s contention that the false
     representation must have concerned a matter that would
     absolutely bar him from the service. To accept the
     appellant’s view would be contrary to the plain
     language of the statute. An accused violates Article
     83 by providing false information about a matter that
     would preclude him from entry without the service
     waiving the disqualification.

Article 83 applies to a misrepresentation about any

disqualifying factors for enlistment, whether established by

statute or service regulation.   See MCM pt. IV, para. 7.c.(1).

It is not necessary that the applicant know that the truth would

bar his enlistment, whether absolutely or absent a waiver.


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United States v. Watson, No. 11-0523/MC

Neither is it necessary that we know what the ultimate result of

the waiver process would have been.   It is sufficient that the

applicant knows “that his answers to questions regarding his

qualifications are untruthful by commission or omission.”

United States v. Holbrook, 66 M.J. 31, 33 (C.A.A.F. 2008).

     By deliberately concealing his inpatient psychiatric

treatment from the recruiter, Watson prevented the service from

determining whether it would waive the bar to enlistment.    Since

the Marine Corps had no way of evaluating whether it would grant

Watson a waiver due to his concealment of the admittedly

material information, Watson’s inpatient psychiatric treatment

remained a bar to his enlistment.   Therefore his conduct

satisfied the elements of Article 83 and the military judge did

not abuse his discretion in accepting his guilty plea.

     Watson also argues that, even if this court finds his

conduct met the elements of Article 83, his plea was still

improvident because the military judge failed to resolve

inconsistencies in Watson’s admissions during the plea colloquy.

In his stipulation of fact, Watson stated that at the time he

signed the stipulation he believed the information regarding his

psychiatric treatment history was a waivable disqualification,

but in a later paragraph stated that it “could have potentially




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United States v. Watson, No. 11-0523/MC

disqualified” him from enlisting.2   During the plea colloquy

itself, Watson stated he “assumed at the time [of his

enlistment] that it would be a disqualifying factor or a factor

that would severely hinder [his] chances of joining the

Marines.”   Later the military judge asked Watson if he believed

that his psychiatric treatment history “may have impacted [his]

ability to enlist in the United States Marine Corps,” to which

Watson answered that he did.

     This court must find “a substantial conflict between the

plea and the accused’s statements or other evidence” in order to

set aside a guilty plea.   The “mere possibility” of a conflict

is not sufficient.   United States v. Garcia, 44 M.J. 496, 498

(C.A.A.F. 1996).   Nothing in Watson’s stipulation of fact or

plea colloquy constitutes a substantial conflict; therefore the

military judge did not abuse his discretion when he accepted the

plea without making further inquiries.

The Fosler Issue

     The second granted issue in this case involves two Article

134 specifications, Specification 1 of Charge IV, communicating

a threat, and Specification 6 of Charge IV, indecent language,

neither of which alleged the terminal element.   In Fosler, a

contested case, we held that where the specification failed to


2
  Of course, no one at this juncture of the proceedings knows
whether the Marine Corps would have waived the bar to enlistment
had it been disclosed at the time of enlistment.

                                10
United States v. Watson, No. 11-0523/MC

allege the terminal element under Article 134, the specification

failed to state an offense and we dismissed the specification.

70 M.J. at 233.   However, Fosler did not involve a guilty plea

and until recently we had not addressed the failure to allege

the terminal element in an Article 134 specification where the

appellant was convicted on the basis of his guilty pleas.

Ballan, 71 M.J. at 34 (stating “Fosler . . . . did not address .

. . the ramifications of a guilty plea in the unique context of

the military justice system”).

     In Ballan, this court held that:

     while it is error to fail to allege the terminal
     element of Article 134, UCMJ, expressly or by
     necessary implication, in the context of a guilty
     plea, where the error is alleged for the first time on
     appeal, whether there is a remedy for the error will
     depend on whether the error has prejudiced the
     substantial rights of the accused.

Id. at 30.   We also held that where the military judge described

clauses 1 and 2 of Article 134 for each specification during the

plea colloquy and where the record “conspicuously reflect[s]

that the accused clearly understood the nature of the prohibited

conduct as being in violation of clause 1 [or] clause 2, Article

134” there was no prejudice to a substantial right.   Id. at 35

(quoting United States v. Medina, 66 M.J. 21, 28 (C.A.A.F. 2008)

(quotation marks omitted) (brackets in original).

     Watson admitted in his stipulation of fact that his conduct

in each incident was service discrediting.   He then entered into



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United States v. Watson, No. 11-0523/MC

a pretrial agreement and pled guilty to the charges.     The

military judge described the clause 1 and 2 terminal elements

during the plea colloquy and asked Watson whether he believed

his conduct was either service discrediting or prejudicial to

good order and discipline in the Armed Forces.     Watson

specifically explained why his conduct was service discrediting

as to both specifications.   Therefore while the failure to

allege the terminal elements in the specification was error,

under the facts of this case the error was insufficient to show

prejudice to a substantial right.     Ballan, 71 M.J. at 36.

                             Conclusion

     We conclude that the military judge did not abuse his

discretion when he accepted Watson’s guilty plea to the Article

83 offense of fraudulent enlistment.      We further conclude that

any error committed by the military judge in accepting Watson’s

guilty pleas to the defective Article 134 specifications was not

prejudicial to Watson’s substantial rights.     The decision of the

United States Navy-Marine Corps Court of Criminal Appeals is

affirmed.




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United States v. Watson, No. 11-0523/MC


     BAKER, Chief Judge (concurring in the result):

     I concur in the Court’s analysis of Issue I.   With respect

to Issue II, I concur in the result, adhering to my position in

United States v. Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011)

(Baker, J., dissenting); United States v. Ballan, 71 M.J. 28, 36

(C.A.A.F. 2012) (Baker, C.J., concurring in the result).
