                       UNITED STATES, Appellee

                                    v.

                       Tom K. HOLBROOK, Seaman
                     U.S. Coast Guard, Appellant

                              No. 07-0350

                          Crim. App. No. 1251

       United States Court of Appeals for the Armed Forces

                        Argued January 8, 2008

                      Decided February 14, 2008

RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined.


                                 Counsel

For Appellant: Lieutenant Commander Necia L. Chambliss
(argued); Lieutenant Lynn R. S. Capuano.

For Appellee:   Lieutenant Commander Patrick M. Flynn (argued).

Military Judge:   Steven J. Andersen




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Holbrook, No. 07-0350/CG


    Judge RYAN delivered the opinion of the Court.

    A special court-martial composed of a military judge sitting

alone convicted Appellant, pursuant to his pleas, of fraudulent

enlistment, making a false official statement, damage to

military property, reckless driving, use of marijuana, use,

introduction, and distribution of cocaine, leaving the scene of

an accident, and communicating a threat in violation of Articles

83, 107, 108, 111, 112a, and 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 883, 907, 908, 911, 912a, 934

(2000).   The sentence adjudged by the court-martial included a

bad-conduct discharge, confinement for eleven months, and

reduction to the lowest enlisted grade.   The convening authority

approved the findings and sentence, but agreed to suspend

confinement in excess of ten months until the date of

Appellant’s release from confinement.   The United States Coast

Guard Court of Criminal Appeals (CCA) set aside the findings of

guilty to the leaving the scene of an accident specification and

affirmed the remaining findings of guilty.   United States v.

Holbrook, 64 M.J. 553, 558 (C.G. Ct. Crim. App. 2007).     As a

remedy for Appellant’s failure to receive speedy review of his

case, the CCA only approved a reduction in grade to E-2.    Id.

     On Appellant’s petition, we granted review of:

     WHETHER APPELLANT’S PLEA TO FRAUDULENT ENLISTMENT
     (CHARGE I) WAS IMPROVIDENT BECAUSE THE MILITARY JUDGE
     FAILED TO ELICIT FACTS SUFFICIENT TO ESTABLISH THAT


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United States v. Holbrook, No. 07-0350/CG


       APPELLANT KNEW HE LIED ABOUT A MATERIAL FACT RELEVANT
       TO HIS QUALIFICATIONS FOR ENLISTMENT.1

                           I.     Facts

       The specification alleged that Appellant made:

       knowingly false representations that he had
       experimented with marijuana, a controlled substance,
       and that he did not use any other drugs, when in fact,
       he used marijuana frequently, used methamphetamines 2
       to 3 times a week for 2 months, and spent 2 months in
       drug rehabilitation for methamphetamine addiction,
       procure himself to be enlisted as a Seamen Recruit in
       the Coast Guard Delayed Entry Program, and did
       thereafter, receive pay and allowances under the
       enlistment so procured.

Appellant stipulated to the above facts, and also that he

executed various enlistment documents, including a

questionnaire, DD Form 1966.       Consistent with the charged

specification, Appellant further stipulated, inter alia, that he

knowingly misrepresented on DD Form 1966 that he had

“experimented with marijuana, but no other drugs.”      In fact,

Appellant had used marijuana extensively, had been a heavy user

of methamphetamines, and had spent two months in a drug

rehabilitation facility.    The providence inquiry supported each

of these facts, without contradiction.

                            II.     Discussion

       Appellant argues that his guilty plea to fraudulent

enlistment was nonetheless not provident because the military

judge failed to establish that Appellant knew that the facts he

1
    65 M.J. 323 (C.A.A.F. 2007).

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United States v. Holbrook, No. 07-0350/CG


misrepresented were “material” to his enlistment at the time he

made them.    The question for us is whether that knowledge was

necessary for Appellant’s plea to have been provident in this

case.    We hold that it was not.

                                    A.

        To reject a guilty plea, the trial record must show “a

‘substantial basis’ in law and fact for questioning the guilty

plea.”    United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991).

Review of the statutory elements required to establish an

offense is a question of law we undertake de novo.    Cf. United

States v. Garcia, 44 M.J. 496, 497 (C.A.A.F. 1996).     If

Appellant’s providence inquiry established the facts necessary

to support the elements of the UCMJ offense charged, the plea to

that charge is provident.    United States v. Faircloth, 45 M.J.

172, 174 (C.A.A.F. 1996).

        The text of Article 83, UCMJ, states, inter alia, that

“[a]ny person who . . . procures his own enlistment or

appointment in the armed forces by knowingly false

representation or deliberate concealment as to his

qualifications for that enlistment or appointment and receives

pay or allowances thereunder . . . shall be punished as a court-

martial may direct.”    The elements of the offense, as listed by

the President, are:




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United States v. Holbrook, No. 07-0350/CG


      (a) That the accused was enlisted . . . 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 . . . ;

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

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

Manual for Courts-Martial, United States pt. IV, para. 7.b.(1)

(2005 ed.) (MCM).

     Both the statute and MCM provide that a misrepresentation

needs to be knowing, and concealment deliberate.   But we see no

requirement within either the text of Article 83, UCMJ, or the

elements set forth in the MCM that the accused actually know

anything other than that his answers to questions regarding his

qualifications are untruthful by commission or omission.    The

question whether a fact is “regarding qualifications” for

“enlistment,” and “material,” is analyzed from the perspective

of the service making the decision on the enlistment, not from

the perspective of the untruthful applicant.2   See, e.g., United


2
 Of course, not every fact regarding a qualification for
enlistment may be material. The President’s addition of the
adjective “material” in MCM pt. IV, para. 7.b.(1) limits the
scope of actionable untruths regarding qualifications for
enlistment. In determining whether a statement is material to
qualifications for enlistment, we look at what the
misrepresentation concealed and what qualities the service

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United States v. Holbrook, No. 07-0350/CG


States v. Gaudin, 515 U.S. 506, 512 (1995) (describing

materiality under 18 U.S.C. § 1001 as requiring a finding that

the accused made a statement to a listener who was attempting to

make a decision based on that statement); cf. United States v.

Loyd, 7 C.M.R. 453, 454 (N.B.R. 1953) (holding that an Article

83, UCMJ, conviction cannot be sustained unless the government

shows that but for the fraudulent statement the accused would

not have been permitted to enlist).

       No authority supports the contrary argument, which makes

criminal liability turn on whether the untruthful applicant to

the armed forces knows that the truth might preclude his

enlistment.   We agree with the lower court that it would be

irrational to require that an applicant fully understand the

consequences of a truthful statement because it would mean

prospective enlistees would need to possess thorough knowledge

of the service’s enlistment standards and policies prior to

applying for and entering active duty.   Holbrook, 64 M.J. at

556.

                                B.

       It is undisputed that Appellant’s providence inquiry

established that he was enlisted in the armed forces, received



sought to assess in determining fitness for duty. Gaudin, 515
U.S. at 512. The threshold is low, as a material statement is
one that need only have a tendency to influence the decision-
making body to which it is addressed. Id. at 509.

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United States v. Holbrook, No. 07-0350/CG


pay and allowances, knowingly misrepresented the extent of his

preservice drug use, and that such prior drug use is relevant to

qualification for enlistment in the Coast Guard -- i.e.,

material.   Appellant’s providence inquiry established both every

element of an Article 83, UCMJ, offense and the facts alleged in

the specification.   Any prevarication during the providence

inquiry regarding the timing of Appellant’s knowledge of the

materiality of his misrepresentations did not raise a

substantial basis in law and fact for questioning his guilty

plea to a violation of Article 83, UCMJ.

                        III.    Decision

     The decision of the United States Coast Guard Court of

Criminal Appeals is affirmed.




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