                        UNITED STATES, Appellee

                                        v.

              Sonya R. VAUGHAN, Airman First Class
                    U.S. Air Force, Appellant

                                 No. 02-0313

                          Crim. App. No. 34107

___________________________________________________________

    United States Court of Appeals for the Armed Forces

                        Argued October 16, 2002

                       Decided January 24, 2003

BAKER, J., delivered the opinion of the Court, in which GIERKE,
EFFRON and ERDMANN, JJ., joined. CRAWFORD, C.J., filed an
opinion concurring in the result.



                                    Counsel


For Appellant: Captain Karen L. Hecker (argued); Major
   Jefferson B. Brown, Major Maria A. Fried, and Lieutenant
   Colonel Beverly B. Knott (on brief); Major Jefferey A.
   Vires.

For Appellee: Major John D. Douglas (argued); Lieutenant
   Colonel LeEllen Coacher and Lieutenant Colonel Lance B.
   Sigmon (on brief).


Military Judge:       Mary M. Boone
      THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Vaughan, 02-0313/AF


      Judge BAKER delivered the opinion of the Court.

      Appellant was tried by members at a general court-

martial.    She was convicted of three specifications of

assault and one charge of “child neglect,” in violation of

Articles 128 and 134, Uniform Code of Military Justice

[hereinafter UCMJ], 10 U.S.C. §§ 928 and 934, respectively.

Appellant contested one of the assault specifications and

entered a conditional plea on the charge of “child neglect”

under Article 134, preserving the issue of whether the

charge stated an offense.       The adjudged and approved

sentence provided for a bad-conduct discharge, confinement

for 30 months, and reduction to pay grade E-1.          The Court

of Criminal Appeals affirmed the findings and sentence.

United States v. Vaughan, 56 M.J. 706 (A.F. Ct. Crim. App.

2001).   We granted review of the following issue:

            WHETHER CHILD NEGLECT THAT DOES NOT
            RESULT IN HARM TO THE CHILD IS AN
            OFFENSE UNDER THE UNIFORM CODE OF
            MILITARY JUSTICE.

      For the following reasons, the decision of the

lower court is affirmed.

      Appellant was stationed at Spangdahlem Air Base,

Germany, and resided off-base with her infant daughter

in nearby Pickliessem, Germany.        The Government

originally charged her with leaving her daughter



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United States v. Vaughan, 02-0313/AF


unattended on divers occasions for time periods ranging

from 30-45 minutes up to six hours.       In response to

Appellant’s motion to dismiss the child neglect charge

for failure to state an offense, the military judge held

that the shorter time periods did not support a charge

of child neglect, but allowed the Government to proceed

on the longer time period.       Appellant conditionally

pleaded guilty to child neglect for leaving her 47 days-

old daughter, SK, alone in her crib for six hours from

11:00 p.m. to 5:00 a.m. while she went to a club that

was a 90 minute drive away.       She had called the child’s

father earlier in the day, and he agreed to watch SK

while she went to the club.       When the father did not

arrive, Appellant left for the club anyway.         At the time

she left the child, Appellant believed that he was not

going to show up, since he had failed to do so on

previous occasions.      She further testified that she

locked the door and that no one other than the father

had a key.    The father, in fact, did not show up to care

for SK during Appellant’s absence.       SK suffered no

apparent harm during Appellant’s absence.       Appellant was

charged with “child neglect” as a       “service-

discrediting” offense under clause 2 of Article 134.




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United States v. Vaughan, 02-0313/AF


       Appellant challenges her conviction on three bases.

First, she argues that she did not have notice that her

conduct was subject to criminal sanction under Article 134

and that the specific charge and military judge’s

subsequent guidance, did not provide proper notice as to

the specific elements of the offense.                     Second, she argues

that her conduct falls outside the definition of child

neglect because SK was not harmed by being left alone.

Third, she argues that her actions were not service

discrediting.         We address each argument in turn.

                                     Discussion

       A.     Fair Notice

       Due process requires “fair notice” that an act is

forbidden and subject to criminal sanction.                        United

States v. Bivins, 49 M.J. 328, 330 (C.A.A.F. 1998).                           It

also requires fair notice as to the standard applicable

to the forbidden conduct.               Parker v. Levy, 417 U.S. 733,

755 (1974).        In Parker, the Supreme Court gave meaning

to these concepts in the context of Article 133, UCMJ,

10 U.S.C. § 933 (2002) and Article 134.1



1
  417 U.S. 733, 757-58 (1974). The Manual for Courts-Martial, United States (2002 ed.)
[hereinafter MCM] lists two requirements under Article 134 if the conduct addressed is
“of a nature to bring discredit upon the armed forces”:
        1. That the accused did or failed to do certain acts; and
        2. That, under the circumstances, the accused’s conduct was . . . of a nature
            to bring discredit upon the armed forces.
        Id. at Part IV, at para. 60.b. (1)-(2).



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United States v. Vaughan, 02-0313/AF


       The Court held that the language of Article 134 was

not so vague that service members could not understand

what conduct was proscribed and, therefore, Article 134

was not facially void for vagueness.        Id. at 756-57.

“Void for vagueness,” the Court ruled, “means that

criminal responsibility should not attach where one

could not reasonably understand that his contemplated

conduct is proscribed.”       Id. at 757.   The Court noted

that interpretations by this Court, military

authorities, as well as the examples in the Manual for

Courts-Martial, United States (2002 ed.), [hereinafter

MCM], have limited the broad reach of the literal

language of Article 134.       Id. at 753-54.   At the same

time, the Court did not preclude future application of

Article 134 to actions not specifically mentioned in the

MCM.    “But even though sizable areas of uncertainty as

to the coverage of the articles may remain after their

official interpretation by authoritative military

sources, further content may be supplied even in these

areas by less formalized custom and usage.”        Id. at 754

(emphasis added).

       Citing Parker v. Levy, this Court has held that as

a matter of due process, a service member must have

“’fair notice’ that his conduct [is] punishable” before


                                   5
United States v. Vaughan, 02-0313/AF


he can be charged under Article 134 with a service

discrediting offense. Bivens, 49 M.J. at 330.      This

Court has found such notice in the MCM, federal law,

state law, military case law, military custom and usage,

and military regulations.       See MCM Part IV, at para.

60.c.(4)(b)-(c) (permitting offenses under federal and

state law to be charged under Article 134); id. Part IV,

at paras. 60-114 (listing specified Article 134

offenses); Article 137, UCMJ, 10 U.S.C. 937 (2002)

(requiring explanation to members of punitive UCMJ

Articles 77-134 , 10 U.S.C. §§ 877-934 (2002)); United

States v. Boyett, 42 M.J. 150, 153-54 (C.A.A.F.

1995)(noting that a court may take judicial notice of

regulations as evidence of military custom).      United

States v. Guerrero, 33 M.J. 295, 298 (C.M.A.

1991)(citing Article 137 and military customs on

civilian dress as evidence of notice for prosecution for

“cross dressing”).      Therefore, the question is whether

Appellant had fair notice that leaving her child alone

for six hours under the conditions presented, and

without apparent harm, was subject to sanction under

Article 134.

      Both sides agree that child neglect is not

specifically listed in the MCM as an Article 134


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United States v. Vaughan, 02-0313/AF


offense.      Therefore, we must look elsewhere to determine

whether Appellant should have reasonably contemplated

that her conduct was subject to criminal sanction, and

not simply the moral condemnation that accompanies bad

parenting.

      (1)    Case Law

      Military case law in this area is scant, and

arguably can be read to provide some support to both the

Government’s and Appellant’s position.       The Army Court

of Criminal Appeals has held that child neglect that

does not result in harm is not an Article 134 offense

absent a regulation clearly prohibiting the conduct.

United States v. Wallace, 33 M.J. 561, 563-64 (A.C.M.R.

1991).      In contrast, the Air Force Court in United

States v. Foreman, ACM No. 28008, 1990 CMR LEXIS 622, at

* 2 (A.F.C.M.R. May 25, 1990), held in an unpublished

opinion, that while child neglect “is viable” as an

Article 134 offense, the facts presented during the

providence inquiry in that case were insufficient to

sustain the conviction.       While these cases are not

controlling, they demonstrate that the lower courts’

approaches have been contextual, and that service

members have heretofore been charged under Article 134

with child neglect for leaving children unattended.


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United States v. Vaughan, 02-0313/AF


Significantly, Appellant’s relevant service court has

gone furthest in ruling that an offense of “[child

neglect] is viable under clause 2 of Article 134.”

Foreman, 1990 CMR LEXIS at *2.

       (2)    State Law

       Appellant further argues that she did not receive

fair notice from state statutes that her conduct

overseas was criminal under Article 134.                      Moreover, even

if state statutes provided general notice that child

neglect was subject to criminal sanction, several of

those statutes require a finding of substantial harm in

order to sustain a child neglect conviction.                        Thus,

according to Appellant, absent a showing of substantial

harm, her plea is improvident.

       In our view, the preponderance of states laws

support a contrary conclusion.                  A majority of state

statutes submitted by Appellant (34 of 48, including the

District of Columbia) criminalize child neglect in the

context of a protected relationship, regardless of

actual harm to the child, when the conduct violates a

duty of care and places the child at risk of harm.2

Thus, the better view is that state statutes generally


2
  At the time of Appellant’s conviction, 33 states and the District of Columbia
statutorily made “child neglect” criminally punishable as a felony or misdemeanor.   These
are listed as an Appendix to this opinion.



                                            8
United States v. Vaughan, 02-0313/AF


serve to provide constructive notice that child neglect

through absence of supervision or care, with an

attendant risk of harm, can constitute a criminal

offense.    The locus of the charged conduct does not

change the measure of notice.          Appellant was not charged

through assimilation of a state statute in Germany, but

through application of Article 134, with uniform

application worldwide.

      (3)   Custom

      Fair notice does not depend on military case law or

state statute alone.      In Parker v. Levy, the Supreme

Court recognized that in addition to constructions of

Articles 133 and 134 provided by the MCM and military

courts, “less formalized custom and usage” may further

define the scope of conduct proscribed by Article 134.

417 U.S. at 754.     In our view, there is established

military custom of protecting dependents from harm.

Dependents are an integral part of the specialized

military community which the Supreme Court addressed in

Parker.     This is especially true of dependents based

overseas over whose welfare the United States bears

increased responsibility in the absence of normal

familial and social ties, as well as the array of public

services available within the United States.          Moreover,


                                   9
United States v. Vaughan, 02-0313/AF


dependents overseas can often face heightened security

concerns.

      Several Department of Defense (DOD) regulations

apply. Department of Defense, Directive 6400.1, Family

Advocacy Program (July 23, 1992) [hereinafter Directive

6400.1], for example, addresses the Family Advocacy

Program (FAP).     The FAP is a “program designed to

address prevention, identification, evaluation,

treatment, rehabilitation, followup, and reporting of

family violence.     FAPs consist of coordinated efforts

designed to prevent and intervene in cases of family

distress, and to promote healthy family life.”       Id. 10,

at para E2.1.5.     Directive 6400.1 states that the local

FAP office shall be notified immediately when an act of

child abuse occurs.      Id. 5-6, at para. 6.1.   It further

defines the term as follows:

   Child Abuse and/or Neglect. Includes physical
   injury, sexual maltreatment, emotional maltreatment,
   deprivation of necessities, or combinations for a
   child by an individual responsible for the child’s
   welfare under circumstances indicating that the
   child’s welfare is harmed or threatened. The term
   encompasses both acts and omissions on the part of a
   responsible person.

Id. 9, at para. E.2.1.3 (emphasis added).

      DOD Instruction 6400.3 further notes that it is DOD

policy to “[p]rovide a safe and secure environment for



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United States v. Vaughan, 02-0313/AF


DOD personnel and their families.”        Department of

Defense, Instruction 6400.3, Family Advocacy Command

Assistance Team 2, at para. 4.1.        (February 3, 1989).

      Significantly, Directive 6400.1 mandates that in

the case of alleged instances of child neglect and/or

abuse:

         [T]he local FAP office . . . shall . . . ensure
   implementation of the following procedures:
           . . . .
        6.1.3. Notification of military law enforcement
        and investigative agencies.
        6.1.4. Notification of the local public child
        protective agency (in alleged child abuse cases
        only) in the United States and where covered by
        agreement overseas.
        6.1.5. Observance of the applicable rights of
        alleged offenders.

Directive 6400.1 5-6, at paras. 6.1, 6.1.3-6.1.5.

(emphasis added).

      Thus, DOD regulation provides notice that child

neglect is potentially subject to military criminal

investigation.     While DOD and service regulations are

not the same as UCMJ offenses, this Court may take

notice of such regulations as evidence of notice through

custom of an Article 134 offense.        United States v.

Boyett, 42 M.J. 150, 152 (C.A.A.F. 1995).        We need not

decide whether custom and regulation, state law, or

military case law alone would meet the requirements for




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United States v. Vaughan, 02-0313/AF


due process notice enunciated in Parker.3                      We conclude

that when addressed together, appellant should

reasonably have understood that her contemplated conduct

was subject to military criminal sanction.

       B.     Sufficiency of the Specification

Appellant’s due process argument has two facets.                          As

addressed above, Appellant argues that she was not on fair

notice that child neglect was subject to criminal sanction

under Article 134.           Additionally, Appellant contends on

appeal that whether or not she was on general notice, the

Government’s charge, and subsequently the military judge’s

providence inquiry pursuant to United States v. Care, 18

C.M.A. 535 (1969), did not properly define the specific

elements of the offense.              Thus, Appellant was not on fair

notice as to what conduct was specifically proscribed under

Article 134.        We disagree.

       In conducting the providence inquiry, the military

judge advised Appellant that the elements of the offense of

child neglect charged under Article 134 were as follows:

         The first element of this specification is that
    between on or about 2 January 1999 and on or about 3

3
   The Government would have us conclude that appellant was inherently on notice that her
conduct was unlawful because it was inherently wrongful. However, an important
distinction exists between the common sense understanding that a baby left unattended in
a crib for six hours is bad parenting and fair notice that such conduct is criminally
punishable. While we note that Department of Defense Directive 6400.1, Family Advocacy
Program (July 23, 1992), explicitly states that it is not intended to create criminally
enforceable rights, that does not preclude its use as evidence of military custom. See
id. 6400.1, 2, para.2.4. In light of our conclusion above, we need not address the
question of “inherent notice.”



                                           12
United States v. Vaughan, 02-0313/AF


   January 1999, at or near Pickliessem, Germany, you
   neglected your daughter, [SK].
         The second element is that you did so by leaving
   [SK] in your house without supervision or care for an
   unreasonable period of time, without regard for the
   mental or physical health, safety, or welfare of
   [SK].
         The third element is that [SK] is a child under
   the age of one year.
         And the fourth element is that under the
   circumstances, your conduct was to the prejudice of
   good order and discipline in the armed forces or was
   of a nature to bring discredit upon the armed forces.


      The Government immediately corrected the military

judge on element four, noting that the child neglect had

only been charged as “service discrediting” under the

second clause of Article 134.           While Appellant had earlier

entered a conditional plea, subject to her motion to

dismiss for failure to state an offense under Article 134,

she did not challenge the specific elements of the offense

as defined by the military judge.           Rather, the judge

reviewed the elements and facts with Appellant ensuring her

understanding of the relationship between fact and law.

During the Care inquiry, for example, the military judge

elaborated on the four elements of the offense:

   MJ: When we talk about negligence in this case, we’re
   talking about culpable negligence, where it’s above
   what would be simple negligence. “Culpable
   negligence” is a degree of carelessness greater than
   simple negligence. “Simple negligence” is the
   absence of due care. The law requires everyone at
   all times to demonstrate due care for the safety of
   others. And what a reasonably careful person would


                                   13
United States v. Vaughan, 02-0313/AF


   demonstrate under the same or similar circumstances.
   That is what due care means.

   MJ: Now, culpable negligence, on the other hand, is a
   negligent act or failure to act, accompanied by a
   gross, reckless, wanton, or deliberate disregard for
   the foreseeable consequences of your conduct, results
   to others, instead of merely a failure to use due
   care. So it’s a grossness. It’s larger than simple
   negligence. So those are the definitions and the
   elements. Do you feel like you understand those?

   ACC: Yes, ma’am.

   . . . .

   MJ: Okay. So, do you agree then that a child of that
   age, about a month-and-a-half, needs to generally
   have supervision or someone around them to watch over
   them?

   ACC: Yes, ma’am.

   MJ: Now I know that at other times you might leave
   briefly, and that’s one thing, and we talked about
   that. And I’m not allowing the government to go
   forward. And I know you’ve left her before for brief
   occasions, maybe up to 30 minutes or so, if that’s
   correct. But this is a much longer period of time,
   six to seven hours.
     So I need to make sure that you feel comfortable
   that you agree that what you did was more than simple
   negligence. That means that your decision to leave
   her—and this wasn’t any emergency that made you leave
   the child, that you had to take care of something
   else?

   ACC: No, ma’am.

   MJ: It was just for whatever you wanted to do
   personally, correct?

   ACC: Yes, ma’am.

   MJ: It was more than simple negligence. That means
   that your failure to be there and supervise her and
   care for her during this period of time, that first


                                   14
United States v. Vaughan, 02-0313/AF


   of all, that was unreasonable. Do you agree that
   that period of time was an unreasonable period of
   time to leave her in your house alone?

   ACC: Yes, ma’am.

   MJ: Again, without anybody coming in to take care of
   her?

   ACC: Yes, ma’am.

   MJ: And do you agree that potentially, depending upon
   what might happen—sometimes little babies can have
   milk or something, and they can vomit little amounts,
   or they could potentially, if they’re on their back
   or their side, or anything like that, choke. Again,
   that didn’t happen. And you were fortunate, because
   when you came home the baby was okay. Is that right?

   ACC: Yes, ma’am.

   MJ: But do you agree that during that period of time
   any number of things potentially could have happened?

   ACC: Yes, ma’am.

   MJ: I mean, the baby could have needed diapers
   changed. So you agree that that was then an
   unreasonable time to leave her, and that that was a
   disregard for her mental, her physical health, her
   safety, and her potential welfare?

   ACC: Yes, ma’am.

   . . . .

   MJ: And do you agree that under that circumstance,
   again, not knowing that he was going to show up or
   not, and knowing in the past that he hadn’t shown up,
   that you were not using the care you should have in
   ensuring that somebody was going to be there to take
   care of her?

   ACC: Yes, ma’am.




                                   15
United States v. Vaughan, 02-0313/AF


    MJ: And, again, do you agree that this is more than
    mere negligence? It’s culpable negligence. That’s
    more than simple negligence. Do you agree?

    ACC: Yes, ma’am.

       An Article 134 offense that is not specifically listed

in the MCM must have words of criminality and provide an

accused with notice as to the elements against which he or

she must defend.          United States v. Davis, 26 M.J. 445, 447-

48 (C.M.A. 1988).4           Article 134 states that a specification

not listed in the MCM may be used to allege a general

offense under MCM, Part IV, at para. 60.c.(6)(c). Here,

because the charged offense was not listed in the MCM, the

military judge defined the elements herself, without

specifying the source of her definitions.

       In our view, the elements she listed capture the

essence of “child neglect” as reflected in military custom

and regulation as well as a majority of state statutes.

The military judge correctly determined that child neglect

requires culpable negligence and not just simple

negligence.        She further concluded that such negligence was

defined by what was reasonable under the circumstances,


4
  In Davis, the specifications were upheld because they alleged the time and place the
conduct occurred and that it was discrediting and prejudicial to good order and
discipline. “The true test of the sufficiency of an indictment is not whether it could
have been made more definite and certain, but whether it contains the elements of the
offense intended to be charged, and sufficiently apprises the defendant of what he must
be prepared to meet; and, in case any other proceedings are taken against him for a
similar offense, whether the record shows with accuracy to what extent he may plead a
former acquittal or conviction.” United States v. Davis, 26 M.J. 445, 448 (C.M.A.
1988)(quoting United States v. Sell, 3 C.M.A. 202, 206 (1953)).



                                           16
United States v. Vaughan, 02-0313/AF


i.e., that leaving SK unattended for an “unreasonable time”

equated to gross or culpable negligence.      Moreover, these

are terms in general and common usage within the UCMJ.       See

e.g., MCM Part IV, at para. 16.b.(3)&c(3) (dereliction in

performance of duties); id. at para. 34.c.(3) (improper

hazarding of vessel); id. at para. 44.c.(2)(a) (involuntary

manslaughter by culpable negligence); id. at para.

80.b.(2)&(c)(firearm, discharging-through negligence); id.

at para. 85.c.(2)(homicide, negligent).      Finally,

consistent with a majority of statutes and military custom

and regulation, the military judge did not require a

showing of harm, but rather an absence of due care measured

by an absence of regard for the mental or physical health,

safety or welfare of the child.

      This approach is consistent with our conclusion

regarding the enumerated offense of maltreatment.       United

States v. Carson, 57 M.J. 410 (C.A.A.F. 2002) (finding that

prosecution for maltreatment does not require proof of

physical or mental harm, rather “[i]t is only necessary to

show, as measured from an objective viewpoint in light of

the totality of the circumstances, that the accused’s

actions reasonably could have caused physical or mental

harm or suffering”).      Based on the totality of

circumstances, the trier of fact must determine whether an


                                   17
United States v. Vaughan, 02-0313/AF


accused’s actions reasonably could have caused physical or

mental harm or suffering.               We do not take issue with the

military judge’s conclusion in this case that Appellant

could properly plead to such a possibility in the case of a

newborn infant left alone in a crib for six hours in a

locked apartment with all the attendant risks of choking,

suffocation, or fire.             We need go no further in defining

the specific elements of the first requirement for an

Article 134 offense – that the accused did or failed to do

certain acts.5         Whether acts or omissions amount to “child

neglect” under Article 134, as measured by the elements

given above, in another instance will depend on the facts

as evaluated by the trier of fact.6                   Thus, we hold that the

elements given by the military judge gave Appellant

sufficient notice.           The military judge properly defined

“child neglect” as culpably negligent conduct, unreasonable



5
 See Parker v. Levy, 417 U.S. 754, 755-56 (1974)(noting that Levy could not challenge the
vagueness of Article 134 Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §
934 (2002), as “hypothetically applied to the conduct of others”). In the context of the
UCMJ, this area of law would benefit from the expertise and review of the political
branches. In the interim, this decision, built as it is on military custom, defense
regulation, and state statute, will further serve as notice regarding the potential
application of Article 134 to instances of child neglect. We may prefer, for sound legal
policy reasons, that other branches address this issue first, but we cannot eschew the
legitimate questions of law argued by both sides. Our duty is to say what the law is in
the context of a given case or controversy.
6
  See 720 Ill. Comp. Stat. Ann. 5/12-21.5 (West Supp. 1998). The Illinois statute, for
example, gives a nonexhaustive list of factors to consider in determining “whether a
child was left without regard for the mental or physical health, safety, or welfare of
that child[.]” Id. at 12-21.5(a). The statute includes: the duration of time that the
child was left unsupervised, the condition and location where the child was left, the
time of day or night, weather conditions, protection from natural elements, adequate heat
and light, and the location of the parent or responsible party at the time relative to
the location of the child.



                                           18
United States v. Vaughan, 02-0313/AF


under the totality of the circumstances, that caused a risk

of harm to the child.

      C.    Service Discredit

      Having found that Appellant was on notice and that

the offense of child neglect does not require actual

harm to the child, we now look to Appellant’s final

contention that her conduct was not, in any event,

service-discrediting and, therefore, not an offense

under MCM Part IV, at para. 60.b.       An unlawful act can

serve to establish service discredit.       Bivens, 49 M.J.

at 330 (prosecuting bigamy, even though specified bigamy

elements not met); Davis, 26 M.J. at 448 (noting that

conduct that is generally illegal tends to be

discrediting for that very reason).       As a result, the

Government urges adoption of a per se rule of service

discredit in the case of child neglect.       However, given

the range of conduct that might reasonably be charged

under the specified elements above, inter alia, raising

questions of fact regarding time, risk, and location, we

decline to do so.     Whether a given act of “child

neglect” amounts to criminal conduct under Article 134

will invariably present questions of fact for the trier

of fact to determine.      This will be equally true of the

second part of the test: whether the conduct was


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United States v. Vaughan, 02-0313/AF


discrediting.         In Appellant’s case, we have no finding

of fact because she conditionally plead guilty to the

offense.       Therefore, we rely on the Care inquiry.

       We are satisfied, based on the facts of the case

that Appellant’s plea was provident regarding the

service-discrediting element of the offense.7                         Not only

did Appellant violate service custom and the norms of

many states, her actions while living abroad would not

reflect well on the United States military.                        MCM Part

IV, para. 60.c. (3) (“’Discredit’ means to injure the

reputation of.          This clause . . . makes punishable

conduct which has a tendency to bring the service into

disrepute or which tends to lower it in the public

esteem.”); Guerrero, 33 M.J. at 298; Davis, 26 M.J. at

448.      The behavior of U.S. service members abroad is

the face of the armed forces in many countries, and the

reputation of the military is equally at stake

worldwide.

       For these reasons, we affirm the findings and

sentence of the Air Force Court of Criminal Appeals.




7
  The military judge addressed the issue during her inquiry pursuant to United States v.
Care, 18 C.M.A. 535 (1969), as follows:
        MJ: So do you agree that if somebody out there heard about this, and other people
        knew about this in this community, that they would look down upon an Air Force
        member leaving their child unaccompanied without a baby-sitter, any supervision,
        or anybody checking on that child for that lengthy period of time?
ACC: Yes, ma’am.



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United States v. Vaughan, 02-0313/AF


                             Appendix

At the time of appellant’s conviction, 33 states and the
District of Columbia statutorily made “child neglect”
criminally punishable as a felony or misdemeanor.

1. Arizona: “ [a]ny person . . . having the care or
custody of such child . . . causes or permits . . . a child
. . . to be placed in a situation where its person or
health is endangered . . .” Ariz. Rev. Stat. § 13-3623
(1997) The severity of this offense varies depending on
whether or not the circumstances were likely to cause
serious injury or death. Id. See Arizona v. Deskings, 152
Ariz. 209, 731 P.2d 104 (Ct. App. 1986) (finding that
statutory language is not too vague or overbroad).

2. Arkansas: “[k]nowingly engages in conduct creating a
substantial risk of serious harm to the physical or mental
welfare of one know by the actor to be a minor.” Ark. Code
Ann. § 5-27-204 (1997).

3. California: “having the care or custody of any child,
. . . willfully causes or permits . . . that child to be
placed in a situation where his or her person or health may
be endangered, is guilty of a misdemeanor.” Cal. Penal
Code § 273a (b)(1998). The severity of this offense varies
depending on whether or not the circumstances were likely
to cause serious injury or death. Id.

4. Colorado: “permits a child to be unreasonably placed
in a situation which poses a threat of injury to the
child’s life or health . . . .” Colo. Rev. Stat. § 18-6-
401(1) (1998).

5. Connecticut: “willfully or unlawfully causes or
permits any child under the age of 16 years to be placed in
such a situation that life or limb of such child is
endangered, the health of such child is likely to be
injured or . . . does any act likely to impair the health .
. . of any such child . . . .” Conn. Gen. Stat. § 53-21
(1999).

6. Delaware: “[a] person is guilty of endangering the
welfare of a child when: [b]eing a parent, guardian or
other person legally charged with the care or custody of a
child less than 18 years old[,] the person [k]nowingly acts
in a manner likely to be injurious to the physical, mental


                                   21
United States v. Vaughan, 02-0313/AF


or moral welfare of the child . . . .”   Del. Code Ann. tit.
11, § 1102(a)(1) (1998).

7. District of Columbia: “any person . . . who shall
refuse or neglect to provide for any child under the age of
14 years, of which he or she shall be the parent or
guardian, such food, clothing and shelter as will prevent
the suffering and secure the safety of such child . . . .”
D.C. Code Ann. § 22-902 (1999).

8. Florida: “a caregiver’s failure or omission to provide
a child with the care, supervision, and services necessary
to maintain the child’s physical and mental health,
including . . . supervision . . . that a prudent person
would consider essential for the well-being of the child .
. . . Neglect of a child may be based on repeated conduct
or on a single incident or omission that . . . could
reasonably be expected to result in, serious physical or
mental injury, or a substantial risk of death, to a child.”
Fla. Stat. Ann. ch. 827.03(3)(a)(1)-(2) (1998).

9. Idaho: “willfully causes or permits such child to be
placed in such situation that its person or health may be
endangered . . . .” Idaho Code § 18-1501(1), (2) (1998).
The severity of this offense varies depending on whether or
not the circumstances were likely to cause serious injury
or death. Id.

10. Indiana: “[a] person having the care of a dependent .
. . who knowingly or intentionally[] places the dependent
in a situation that may endanger his life or health . . .
.” Ind. Code § 35-46-1-4(a)(1) (1998).

11.   Iowa:

     A. “[a] person who is the father, mother, or some
other person having custody of a child . . . who knowingly
or recklessly exposes such person to a hazard or danger
against which such person cannot reasonably be expected to
protect such person's self . . . .” Iowa Code § 726.3
(1996).
     B. “knowingly acts in a manner that creates a
substantial risk to a child or minor's physical, mental or
emotional health or safety . . . [w]illfully deprives a
child or minor of necessary food, clothing, shelter, health
care or supervision appropriate to the child or minor's
age, when the person is reasonably able to make the


                                   22
United States v. Vaughan, 02-0313/AF


necessary provisions and which deprivation substantially
harms the child or minor's physical, mental or emotional
health . . . .” Iowa Code § 726.6(1)(d) (1996).

12. Kansas: “[e]ndangering a child is intentionally and
unreasonably causing or permitting a child under the age of
18 years to be placed in a situation in which the child's
life, body or health may be injured or endangered.” Kan.
Stat. Ann. § 21-3608 (1998).

13.   Kentucky:

     A. “recklessly . . . permits another person of whom
he has actual custody to be abused and thereby: [c]auses
physical injury; or [p]laces him in a situation that may
cause him serious physical injury. . . .” Ky. Rev. Stat.
Ann. § 508.120(1)(a)-(b) (1998).

     B. “’[a]buse’ means the infliction of physical pain,
injury, or mental injury, or the deprivation of services by
a person which are necessary to maintain the health and
welfare of a person . . . .” Ky. Rev. Stat. Ann. §
508.090(1) (1998).

14. Louisiana: “[c]hild desertion is the intentional or
criminally negligent exposure of a child under the age of
ten years, by a person who has the care, custody, or
control of the child, to a hazard or danger against which
the child cannot reasonably be expected to protect himself,
or the desertion or abandonment of such child, knowing or
having reason to believe that the child could be exposed to
such hazard or danger. Whoever commits the crime of child
desertion shall be fined not more than five hundred dollars
or be imprisoned for not more than six months, or both.“
La. Rev. Stat. Ann. § 14:93.2.1(A)-(B)(1) (1998).

15. Maine: “recklessly endangers the health, safety or
welfare of a child under 16 years of age by violating a
duty of care or protection.” Me. Rev. Stat. Ann. tit. 17-
A, § 554(1)(C) (1998).

16. Minnesota: “[a] parent, legal guardian, or caretaker
who willfully deprives a child of necessary food, clothing,
shelter, health care, or supervision appropriate to the
child's age, when the parent, guardian, or caretaker is
reasonably able to make the necessary provisions and the
deprivation harms or is likely to substantially harm the


                                   23
United States v. Vaughan, 02-0313/AF


child's physical, mental, or emotional health is guilty of
neglect of a child . . . .” Minn. Stat. Ann. § 609.378(1)
(1998).

17. Missouri: “[a] person commits the crime of
endangering the welfare of a child in the second degree if
he with criminal negligence acts in a manner that creates a
substantial risk to the life, body or health of a child
less than seventeen years old . . . .” Mo. Rev. Stat. §
568.050 1.(1) (1999).

18. Montana: “knowingly endangers the child's welfare by
violating a duty of care, protection, or support. . . . On
the issue of whether there has been a violation of the duty
of care, protection, and support, the following . . . is
admissible [evidence]: . . . abandonment; neglect; lack of
proper medical care, clothing, shelter, and food; and
evidence of past bodily injury.” Mont. Code Ann. § 45-5-
622(1), (5) (1998).

19. Nebraska: “knowingly, intentionally, or negligently
causes or permits a minor child to be: [p]laced in a
situation that endangers his or her life or physical or
mental health [or d]eprived of necessary food, clothing,
shelter, or care . . . .” Neb. Rev. Stat. § 28-707(1)(a),
(c) (1999).

20. Nevada: “[w]illfully causes a child who is less than
18 years of age . . . to be placed in a situation where the
child may suffer physical pain or mental suffering as the
result of abuse or neglect; or [i]s responsible for the
safety or welfare of a child and who permits or allows that
child . . . to be placed in a situation where the child may
suffer physical pain or mental suffering as the result of
abuse or neglect . . . . ‘Permit’ means permission that a
reasonable person would not grant and which amounts to a
neglect of responsibility attending the care, custody and
control of a minor child.” Nev. Rev. Stat. Ann. §
200.508(1)(a)-(b), (3)(c) (1998).

21. New Jersey: “[c]ruelty to a child shall consist [of]
. . . exposing a child to unnecessary hardship, fatigue or
mental or physical strains that may tend to injure the
health or physical or moral well-being of such child.
Neglect of a child shall consist in any of the following
acts, by anyone having the custody or control of the



                                   24
United States v. Vaughan, 02-0313/AF


child: (a) willfully failing to provide proper care and
sufficient food, clothing, maintenance . . . or (b) failure
to do or permit to be done any act necessary for the
child's physical or moral well-being . . . .” N.J. Stat.
Ann. § 9:6-1 (1998).

22. New Mexico: “’child’ means a person who is less than
eighteen years of age; ’neglect’ means that a child is
without proper parental care and control of subsistence,
education, medical or other care or control necessary for
his well-being because of the faults or habits of his
parents, guardian or custodian or their neglect or refusal,
when able to do so, to provide them; and ‘negligently’
refers to criminal negligence and means that a person knew
or should have known of the danger involved and acted with
a reckless disregard for the safety or health of the child.
. . . Abuse of a child consists of a person knowingly,
intentionally or negligently, and without justifiable
cause, causing or permitting a child to be placed in a
situation that may endanger the child's life or health. . .
.” N.M. Stat. Ann. § 30-6-1(A)(1)-(3), (C)(1) (1998).

23. New York: “knowingly acts in a manner likely to be
injurious to the physical, mental or moral welfare of a
child . . . less than . . . seventeen years old . . . .”
N.Y. Penal Law § 260.10(1) (1998). See New York v. Watson,
700 N.Y.S.2d 651, 655 (N.Y. Crim. Ct. 1999)(finding legally
sufficient claim for leaving seven year old alone for two
and one-half hours unharmed, but noting that fact-finders
may choose not to convict on such facts).

24. North Carolina: “[a]ny parent of a child less than 16
years of age, or any other person providing care to or
supervision of such child . . . who creates or allows to be
created a substantial risk of physical injury, upon or to
such child by other than accidental means is guilty of the
Class 1 misdemeanor of child abuse.” N.C. Gen. Stat. § 14-
318.2(a) (1999).

25. North Dakota: “a parent, guardian, or other custodian
of any child who willfully commits any of the following
offenses is guilty of a class C felony: [f]ails to provide
proper parental care or control, subsistence . . . or other
care or control necessary for the child's physical, mental,
or emotional health, or morals.” N.D. Cent. Code § 14-09-
22(1)(b) (1997).



                                   25
United States v. Vaughan, 02-0313/AF


26. Ohio: “[n]o person, who is the parent, guardian,
custodian, person having custody or control, or person in
loco parentis of a child under eighteen years of age . . .
shall create a substantial risk to the health or safety of
the child, by violating a duty of care, protection, or
support. ” Ohio Rev. Code Ann. § 2919.22(A) (1998).

27.   Oklahoma:

     A. “’[a]buse and neglect’ means harm or threatened
harm to a child's health or welfare by a person responsible
for the child's health or welfare . . . .” Okla. Stat.
Ann. tit. 10, § 7102(B)(1) (1997).

     B. “[a]ny parent or other person who shall willfully
or maliciously engage in child abuse or neglect . . . or
who shall willfully or maliciously cause, procure or permit
any of said acts to be done, shall upon conviction be
punished by imprisonment . . .or by a fine . . . .” Okla.
Stat. Ann. tit. 10, § 7115 (1997).

28.   Oregon:

     A. “[a] person commits the crime of criminal
mistreatment in the first degree if: [t]he person, in
violation of a legal duty to provide care for another
person . . . intentionally or knowingly withholds necessary
and adequate food, physical care or medical attention from
that other person; or . . . intentionally or knowingly
leaves the dependent person . . . unattended at a place for
such a period of time as may be likely to endanger the
health or welfare of that person. . . . As used in this
section ‘Dependent person’ means a person who because of
either age or a physical or mental disability is dependent
upon another to provide for the person's physical needs.”
Or. Rev. Stat. § 163.205(1) (a)-(b) (C), (2) (1997).

     B. “[a] person having custody or control of a child
under 10 years of age commits the crime of child neglect in
the second degree if, with criminal negligence, the person
leaves the child unattended in or at any place for such a
period of time as may be likely to endanger the health or
welfare of such child.” Or. Rev. Stat. § 163.545(1) (1997).

29. Pennsylvania: “[a] parent, guardian, or other person
supervising the welfare of a child under 18 years of age
commits an offense if he knowingly endangers the welfare of


                                   26
United States v. Vaughan, 02-0313/AF


the child by violating a duty of care, protection or
support.” 18 Pa. Cons. Stat. Ann. § 4304(A) (1998).

30. South Carolina: “[i]t is unlawful for a person who
has charge or custody of a child, who is the parent or
guardian of a child, or who is responsible for the care and
support of a child to: place the child at unreasonable
risk of harm affecting the child's life, physical or mental
health, or safety . . . .” S.C. Code Ann. § 20-7-50(A)
(1998).

31. Texas: “’abandon’ means to leave a child in any place
without providing reasonable and necessary care for the
child, under circumstances under which no reasonable,
similarly situated adult would leave a child of that age
and ability. A person commits an offense if, having
custody, care, or control of a child younger than 15 years,
he intentionally abandons the child in any place under
circumstances that expose the child to an unreasonable risk
of harm.” Tex. Penal Code Ann. § 22.041(a)-(b) (1999).

32.   Vermont:

     A. “[a] person who abandons or exposes a child under
the age of two years, whereby the life or health of such
child is endangered, shall be imprisoned not more than ten
years or fined not more than $1,000 or both.” Vt. Stat.
Ann. tit. 13, § 1303 (1998).

     B. “[a] person over the age of 16 years, having the
custody, charge or care of a child under ten years of age,
who willfully assaults, ill treats, neglects or abandons or
exposes such child, or causes or procures such child to be
assaulted, ill-treated, neglected, abandoned or exposed, in
a manner to cause such child unnecessary suffering, or to
endanger his health, shall be imprisoned not more than two
years or fined not more than $500, or both.” Vt. Stat.
Ann. tit. 13, § 1304 (1999)

33. Virginia: “[i]t shall be unlawful for any person
employing or having the custody of any child willfully or
negligently to cause or permit the life of such child to be
endangered or the health of such child to be injured, or
willfully or negligently to cause or permit such child to
be placed in a situation that its life, health or morals
may be endangered . . . .” Va. Code Ann. § 40.1-103
(1998).


                                   27
United States v. Vaughan, 02-0313/AF


34.   Wyoming:

     A. “[n]o parent, guardian or custodian of a child
shall . . . knowingly or with criminal negligence cause,
permit or contribute to the endangering of the child's life
or health by violating a duty of care, protection or
support.” Wyo. Stat. Ann. § 6-4-403(a)(ii) (1999).

     B. “[n]eglect with respect to a child means failure
or refusal by those responsible for the child's welfare to
provide adequate care, maintenance, supervision . . . or
any other care necessary for the child's well being.” Wyo.
Stat. Ann. § 14-3-202(a)(vii) (1997).




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United States v. Vaughan, No. 02-0313/AF


     CRAWFORD, Chief Judge (concurring in the result):

     While I agree with the result reached by the majority,

I disagree with their rationale.   In my view, it is

inherently illogical to separate questions of notice and

service-discrediting conduct into two distinct inquiries

because each question is intertwined with and dependent

upon the other.

     Clause 2 of Article 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 934 (2002), states that “all

conduct of a nature to bring discredit upon the armed

forces,” though not specifically criminalized by another

UCMJ Article, “shall be taken cognizance of by a . . .

court-martial . . . and shall be punished at the discretion

of that court.”   Thus, in contrast to most criminal

statutes that speak in terms of prohibited acts, clause 2

of Article 134 speaks in general terms of acts which create

a prohibited effect.

     Nonetheless, Article 134 is not void for vagueness

under the Due Process Clause of the Fifth Amendment.

Parker v. Levy, 417 U.S. 733 (1974) (holding judicial

constructions of Article 134 have narrowed the reach of its

broad language and supplied examples of the conduct it

covers).   Thus, the question in this case is whether

Appellant was fairly on notice that her conduct created the
United States v. Vaughan, No. 02-0313/AF


prohibited effect, i.e.- was service-discrediting within

the meaning of Article 134.    If she was, then she could be

prosecuted under that Article.

     In her brief, Appellant argues in the alternative:

First, that she was not on notice her conduct was subject

to prosecution under Article 134, and second, that her

conduct was not service-discrediting.    The majority accepts

these arguments as distinct, and addresses them

individually.   As to the lack-of-notice argument, the

majority recognizes that “child neglect is not specifically

listed in the [Manual for Courts-Martial, United States

(2002 ed.)] as an Article 134 offense,” and that it has to

“look elsewhere to determine whether Appellant should have

reasonably contemplated that her conduct was subject to

criminal sanction[.]”   __ M.J. at (6-7).

     Looking elsewhere (i.e. – military case law, 34 state

statutes criminalizing child neglect, and DOD regulations

evidencing a military custom of protecting dependents), the

majority finds that when these sources are “addressed

together, Appellant should reasonably have understood that

her contemplated conduct was subject to military criminal

sanction.”   Id. at (11-12).

     As to the non-service-discrediting argument, the

majority states:


                               2
United States v. Vaughan, No. 02-0313/AF


     Whether a given act of “child neglect” amounts
     to criminal conduct under Article 134 will
     invariably present questions of fact for the
     trier of fact to determine. This will be
     equally true of the second part of the test:
     whether the conduct was discrediting.

Id. at (19–20) (emphasis added).    The majority then

concludes “Appellant’s plea was provident regarding the

service-discrediting element of the offense.”   Id. at (20).

In reaching this conclusion, the majority focuses on the

fact that Appellant violated military custom, and did so

abroad.

     Thus, the majority clearly states there is a two-part

test.   First, an accused must be on notice that her conduct

can be prosecuted under Article 134.   And second, assuming

the accused is on notice, her conduct must be service-

discrediting.   Yet how can an accused (1) be on notice that

her conduct is punishable under clause 2 of Article 134,

while (2) it still must be determined whether her conduct

created the prohibited effect, i.e. - service-discredit?

In my view, that is not possible.

     Clause 2 of Article 134 punishes only service-

discrediting conduct.   Therefore, it is impossible to be on

notice one's conduct violates clause 2 of Article 134

without also being on notice the conduct is service-

discrediting within the meaning of the statute.   Stated



                              3
United States v. Vaughan, No. 02-0313/AF


differently, there simply is no way the first prong of the

majority’s test can be satisfied without the second prong

of the test also being satisfied – and that is because they

are intertwined components of the same analysis.   I cannot

imagine a conclusion by this Court that an accused was on

notice his or her conduct could be prosecuted under Article

134, but that the conduct was not service-discrediting.

     Thus, while I agree with the result in this case, I

reach that result in a different manner.   As stated

earlier, the only question is whether Appellant was fairly

on notice that her conduct was service-discrediting within

the meaning of Article 134.   See United States v. Sullivan,

42 M.J. 360, 366 (C.A.A.F. 1995)(whether reasonable officer

would know his conduct was service-discrediting); United

States v. Guerrero, 33 M.J. 295, 297 (C.M.A. 1991)

(“appellant was on notice that conduct which . . . brings

discredit upon the Navy is an offense under Article 134.”).

     To answer that question, it is important first to note

that the inquiry is an objective one.   It is not whether

Appellant was on notice that conduct like hers was service-

discrediting under Article 134, but rather, whether a

reasonable enlisted person would be on notice that conduct

like Appellant’s was service-discrediting and, therefore,

was punishable under Article 134.   See Sullivan, 42 M.J. at


                              4
United States v. Vaughan, No. 02-0313/AF


366 (whether “reasonable officer” knew the conduct was

service-discrediting under Article 134); United States v.

Hartwig, 39 M.J. 125, 130 (C.M.A. 1994)(“Any reasonable

officer would recognize that [the conduct in issue] would

risk bringing disrepute upon himself and his profession,”

in violation of Article 133, UCMJ, 10 U.S.C. § 933.)

(emphasis added); United States v. Frazier, 34 M.J. 194,

198-99 (C.M.A. 1992)(“a reasonable military officer would

have no doubt that the activities charged in this case

constituted conduct unbecoming an officer”)(emphasis added

& footnote omitted).

     Whether a reasonable enlisted person would know that

conduct like Appellant’s was service-discrediting within

the meaning of Article 134 depends on what “service-

discrediting” means.   It means “conduct which has a

tendency to bring the service into disrepute or which tends

to lower it in public esteem.”    Manual for Courts-Martial,

supra at Part IV, para. 60.c.(3).

     As a result, the question finally becomes: Would a

reasonable enlisted person fairly be on notice that conduct

such as Appellant’s could be punished under Article 134 as

tending to bring the service into disrepute or lower it in

public esteem?   The answer to that is yes, for all the




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United States v. Vaughan, No. 02-0313/AF


reasons cited by majority, and also because this Court

already has stated:

     Article 134 would appear to encompass two
     general classes of conduct: First, that which
     is or generally has been recognized as illegal
     under the common law or under most statutory
     criminal codes; and, second, that which – however
     eccentric or unusual – would not be viewed as
     criminal outside the military context. The former
     category is prejudicial to good order and
     discipline or is service-discrediting for the
     very reason that it is (or has been) generally
     recognized as illegal; such activity, by its
     unlawful nature, tends to prejudice good order
     or to discredit the service. On the other hand,
     the latter category is illegal solely because,
     in the military context, its effect is to prejudice
     good order or to discredit the service.

United States v. Davis, 26 M.J. 445, 448 (C.M.A. 1988).

See also United States v. Foster, 40 M.J. 140, 143 (C.M.A.

1994)(“enumerated articles [of the UCMJ] are rooted in the

principle that such conduct per se is either prejudicial to

good order and discipline or brings discredit to the armed

forces”).   Appellant’s conduct clearly falls into the

category of “generally recognized illegal” conduct and is,

therefore, per se service-discrediting.




                              6
