                        UNITED STATES, Appellee

                                    v.

                    Lazzaric T. CALDWELL, Private
                     U.S. Marine Corps, Appellant

                              No. 12-0353

                       Crim. App. No. 201000557

       United States Court of Appeals for the Armed Forces

                       Argued November 27, 2012

                        Decided April 29, 2013

BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN, J., and COX, S.J., joined. RYAN, J., filed a
dissenting opinion in which STUCKY, J., joined.


                                 Counsel

For Appellant: Lieutenant Michael B. Hanzel, JAGC, USN
(argued); Captain Michael Berry, USMC, and Captain Paul LeBlanc,
JAGC, USN (on brief).

For Appellee: Major David N. Roberts, USMC (argued); Colonel
Stephen C. Newman, USMC, and Brian K. Keller, Esq. (on brief);
Major Paul M. Ervasti, USMC.



Military Judge:   D. M. Jones



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Caldwell, No. 12-0353/MC


     Chief Judge BAKER delivered the opinion of the Court.

     A military judge sitting as a special court-martial

convicted Appellant, pursuant to his pleas, of orders

violations, larceny, and wrongful self-injury without intent to

avoid service in violation of Articles 92, 121, and 134, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 921, and 934

(2006).   The military judge also convicted Appellant, contrary

to his pleas, of a separate orders violation for wrongfully

possessing “spice.”   The convening authority approved

Appellant’s sentence of confinement for 180 days and a bad-

conduct discharge, but suspended certain portions of the

confinement.

     A divided panel of the United States Navy–Marine Corps

Court of Criminal Appeals (CCA) affirmed the bad-conduct

discharge, but there was no consensus on whether to affirm

Appellant’s sentence of confinement.   United States v. Caldwell,

No. NMCCA 201000557, 2011 WL 5547456 (N-M. Ct. Crim. App. Nov.

15, 2011) (unpublished).   Two judges disagreed over whether

there was a sufficient factual basis to support Appellant’s plea

to the self-injury offense, and the third judge found that the

military judge was in no position to accept pleas of any kind

prior to a board being convened under Rule for Courts–Martial

(R.C.M.) 706.   Compare Caldwell, 2011 WL 5547456, at *2, with

id. at *5-*6 (Beal, J., concurring in part), and id. at *10

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United States v. Caldwell, No. 12-0353/MC


(Maksym, J., dissenting).   Upon sua sponte reconsideration en

banc, the court affirmed Appellant’s convictions and sentence.

United States v. Caldwell, 70 M.J. 630, 636 (N-M. Ct. Crim. App.

2011) (en banc).   Upon petition to this Court, we specified the

following issue:

     WHETHER AS A MATTER OF LAW A BONA FIDE SUICIDE ATTEMPT IS
     PUNISHABLE AS SELF-INJURY UNDER ARTICLE 134.

     For the reasons analyzed below, we conclude that there is a

substantial basis in law and fact for questioning Appellant’s

guilty plea.   Appellant’s plea does not establish that his

conduct was to the prejudice of good order and discipline in the

armed forces, or of a nature to bring discredit upon the armed

forces, and thus does not satisfy the elements of the offense.

Because we find Appellant’s plea improvident, we need not

address the more general and specified question as to whether

and when a bona fide suicide attempt would satisfy the elements

of an Article 134, UCMJ, offense.

                                FACTS

     At the time of the convictions, Appellant was a private in

the United States Marine Corps serving in Okinawa, Japan.

Regarding the wrongful self-injury charge, the CCA summarized

the facts of the offense as follows:

   The appellant was alone in   his barracks room, located in
   Camp Schwab, Okinawa, when   he intentionally cut open his
   wrists with a razor blade,   leaving a trail of blood on the
   barracks floor. Record at    88, 92, 96. At the time of his

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United States v. Caldwell, No. 12-0353/MC


   self-injury, the appellant was in a highly distraught
   state having just learned that he was being ordered back
   into pretrial confinement. Gunnery Sergeant (GySgt) C,
   one of the staff noncommissioned officers in the
   appellant’s unit, informed the appellant he was going back
   to the brig and allowed the appellant the privacy to call
   his parents from his barracks room before processing the
   appellant for confinement. Moments later, GySgt C
   returned to the room and discovered the appellant in his
   injured state. Id. at 92-93, 96. GySgt C administered
   immediate first aid by wrapping socks around the
   appellant’s wounds and then called for the assistance of
   corpsmen, who responded with their medical kits. Id. at
   92-93. After the appellant received acute care for his
   self-inflicted injuries, he was kept for a day in the base
   hospital’s psychiatric ward for observation before being
   placed into pretrial confinement. Id. at 103.

   The undeveloped facts in this guilty plea indicate the
   self-injury was a genuine suicide attempt which was
   precipitated by the appellant receiving two pieces of bad
   news: 1) the death of a close friend who had just
   returned home after being discharged, and 2) his
   commanding officer was ordering him back into pretrial
   confinement. These two events constituted what the
   appellant considered the “last straw” in a recent series
   of emotional hardships which ranged from the deaths of
   several family members to a variety of personal problems
   the appellant was having in his unit.

   Another matter, which may have been a contributing factor
   leading to the appellant’s actions, was the fact that the
   appellant had been treated for depression, post-traumatic
   stress disorder, and an unspecified personality disorder.
   Id. at 94-95. Part of his treatment included a
   prescription to a number of medications, including
   “Zoloft.” Id. at 95. According to the appellant, the
   medications might have been the cause for seizures and
   brain hemorrhages which caused the appellant to stop
   taking his medication approximately two weeks before the
   self-injury. Id. Notwithstanding these issues, the
   appellant disavowed any severe mental disease or defect at
   the time of his offense. Id. at 97-98. Likewise, the
   appellant’s defense counsel, who had a long-standing
   relationship with the appellant as he had represented him
   on other legal assistance and military justice matters,
   was convinced that an inquiry into the appellant’s mental

                                4
United States v. Caldwell, No. 12-0353/MC


   responsibility or capacity was not warranted under RULE
   FOR COURTS-MARTIAL 706, MANUAL FOR COURTS-MARTIAL, UNITED
   STATES (2008 ed.). Id. at 97.

Caldwell, 70 M.J. at 631-32 (footnote omitted).

        During his Care inquiry, the military judge noted that the

self-injury offense was an “odd charge” because “it’s basically

criminalizing an attempted suicide.”    See United States v. Care,

18 C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969).    The military

judge asked if Appellant understood “why people would

criminalize attempted suicide?”    Appellant explained that his

attempted suicide was criminalized because of the way it

affected his unit:

   [A] lot of people were shocked. A lot of people didn’t
   know how to react towards it . . . . [s]o they would kind
   of talk to me a little bit and then back away. It was a
   touchy subject no one wanted to speak about. [I]t was
   just really weird for a couple weeks after that, sir.

Appellant also stated that officers were “really mad” at him

because it sent the message that:

   [B]asically I couldn’t handle what was going on, and they
   couldn’t help me at that point in time. So it makes them
   feel as if I can [not] really go to them and ask for help
   if they couldn’t save this Marine right here.

Given these reactions, Appellant said that he had witnessed how

his conduct was prejudicial to good order and discipline in the

unit.    Appellant also stated that his conduct was service

discrediting because the public might look less favorably toward

the Marine Corps and “[i]t would actually cause a badder [sic]



                                   5
United States v. Caldwell, No. 12-0353/MC


outlook on the superiors” because if exposed, the public “would

look at them as not doing their job.”

     In the first CCA decision, the divided court found that

there was a substantial basis in fact to question the plea to

self-injury, because Appellant’s “mere supposition of possible

effects is insufficient to demonstrate prejudice to good order

and discipline.”   Caldwell, 2011 WL 5547456, at *2.1    In the

later en banc decision, the CCA affirmed the Article 134, UCMJ,

conviction under clause 1, applying to prejudice of good order

and discipline.    Caldwell, 70 M.J. at 632, 636.

                             DISCUSSION

     The issue before us involves the providence of Appellant’s

guilty plea to the Article 134, UCMJ, offense.      Before accepting

a guilty plea, the military judge must conduct an inquiry to

determine whether there is factual basis for the plea, the

accused understands the plea and is entering it voluntarily, and

the accused admits each element of the offense.     United States

v. Mitchell, 66 M.J. 176, 177-78 (C.A.A.F. 2008).      This Court

reviews a military judge’s decision to accept a guilty plea for

an abuse of discretion.   Id. at 178.     We will not reject the

plea unless there is “‘a “substantial basis” in law and fact for


1
  Caldwell, 70 M.J. at 632 (“In our previous opinion, the court
found that there was substantial basis in fact to question the
plea to self-injury, i.e. there was not a factual basis in the
record to support the terminal element.”).
                                  6
United States v. Caldwell, No. 12-0353/MC


questioning the guilty plea.’”    United States v. Glenn, 66 M.J.

64, 66 (C.A.A.F. 2008) (quoting United States v. Prater, 32 M.J.

433, 436 (C.M.A. 1991)).

     Article 134, UCMJ, criminalizes “all disorders and neglects

to the prejudice of good order and discipline in the armed

forces” and “all conduct of a nature to bring discredit upon the

armed forces.”   The Manual for Courts-Martial, United States

(MCM) prescribes two elements for self-injury without intent to

avoid service:

  (1)   That the accused intentionally inflicted injury upon
        himself or herself;

  (2)   That, under the circumstances, the conduct of the
        accused 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.

MCM pt. IV, para. 103a.b.     The explanation to the MCM further

states that the “circumstances and extent of the injury . . .

are relevant to a determination that the accused’s conduct was

prejudicial to good order and discipline, or service-

discrediting.”   Id. at pt. IV, para. 103a.c.(1).

Conduct Prejudicial to Good Order and Discipline

     Conduct that is prejudicial to good order and discipline is

“conduct that causes a reasonably direct and palpable injury to

good order and discipline.”    United States v. Cendejas, 62 M.J.

334, 340 (C.A.A.F. 2006) (citation omitted).    The acts in

question must be “directly prejudicial to good order and

                                   7
United States v. Caldwell, No. 12-0353/MC


discipline,” and not “prejudicial only in a remote or indirect

sense.”   MCM pt. IV, para. 60.c.(2)(a).

     This Court has held that an attempted suicide “may be a

sufficient basis for a charge of intentional self-infliction of

injury to the prejudice of good order and discipline.”    United

States v. Ramsey, 40 M.J. 71, 75 (C.M.A. 1994).     In Ramsey, the

accused, who was deployed to Saudi Arabia during Operation

Desert Shield/Desert Storm, shot himself in the shoulder.      Id.

at 72.    Charged with intentionally injuring himself, the accused

described his conduct as prejudicial to good order and

discipline because:   “I know for one thing it killed the morale

of my unit.   It also made them have to work a little harder to

try [to] fill the position that I was supposed to be filling.”

Id. at 74.    The Government argues that Ramsey is on point;

Appellant demurs.

     The parties also argue the relevance of United States v.

Taylor, 17 C.M.A. 595, 38 C.M.R. 393 (1968).     In Taylor, the

accused, a confined inmate, “superficially slashed his arms with

a razor blade in the presence of two cell mates, representing at

the time that he wanted to outdo the performance of another

inmate who had engaged in the same activity on an earlier

occasion.”    Id. at 596, 38 C.M.R. at 394.   This Court found that

the accused’s conduct had a direct adverse effect upon the good

order and discipline of the command.   Id. at 597, 38 C.M.R. at

                                  8
United States v. Caldwell, No. 12-0353/MC


395.   Taylor was decided over a decade before PTSD was

recognized in the DSM, Am. Psychiatric Ass’n, Diagnostic and

Statistical Manual of Mental Disorders 236-37 (3d ed. 1980), and

the Court did not analyze or consider whether or how a bona fide

suicide attempt qualified as an Article 134, UCMJ, offense.

       Neither case is controlling precedent in the context

presented here.   Rather, the key question is whether there is a

substantial basis in law or fact to question Appellant’s plea to

undermining good order and discipline.   There is.   The record is

clear that Appellant engaged in a bona fide suicide attempt.2

This is reflected in Appellant’s statement that he “made a

conscious decision at that time that [he] did not want to live”

when he attempted suicide by slitting his wrists.    It also is

reflected in the military judge’s statement that the self-injury

offense was an “odd charge” because “it’s basically

criminalizing an attempted suicide.”   While Appellant’s actions

were precipitated by the death of a friend and the prospect of

going to the brig, he was not charged with avoiding a military

duty (confinement in the brig) and he did not state or admit

that he attempted to kill himself to avoid the brig.


2
  A bona fide suicide attempt differs from a suicidal gesture.
See Dep’t of the Navy, Judge Advocate General Instr. 5800.7F,
Manual of the Judge Advocate General ch. II, pt. E., para. 0218
c., at 2-36 (June 26, 2012). (“Self-inflicted injury, not
prompted by a serious suicidal intent, is at most a suicidal
gesture . . . .”).
                                  9
United States v. Caldwell, No. 12-0353/MC


     In this context, the CCA found that Appellant’s plea to the

element of undermining good order and discipline was based on

the following factors:

  By cutting himself, the appellant caused a disorder in the
  barracks. He needlessly exposed GySgt C to his bodily
  fluids and he caused corpsmen to respond with their medical
  kits, presumably expending medical supplies in the process.
  Furthermore, the appellant did not go into pretrial
  confinement as ordered by his commanding officer; instead,
  he was transported to the hospital where he received acute
  medical care followed by treatment in the psychiatric ward
  for one day. The appellant himself stated that the impact
  of his actions on his fellow Marines was palpable by the
  way they acted around him after he returned to the unit.

Caldwell, 70 M.J. at 632.

     These factors are insufficient to establish a reasonably

direct and palpable injury to good order and discipline.    Unlike

the accused in Taylor, who “superficially slashed his arms with

a razor blade in the presence of two cell mates,” 17 C.M.A. at

596, 38 C.M.R. at 394, Appellant attempted suicide while alone

in his barracks room.    When the gunnery sergeant walked into the

room, he reacted to the sight of blood in a competent and

professional manner.    The gunnery sergeant and medically trained

corpsman administered first aid, as they would have in response

to any other injury.    The corpsmen acted as they were trained to

do, and there was no evidence presented that any medical

resources they used were needed elsewhere.   Moreover, if the

expenditure of medical resources alone undermined good order and

discipline, then every bona fide suicide attempt requiring

                                 10
United States v. Caldwell, No. 12-0353/MC


medical attention would be per se prejudicial to good order and

discipline and on that basis alone could be subject to

prosecution.   The brief delay in Appellant’s pretrial

confinement for medical care and one day of treatment in the

psychiatric ward might have been relevant if Appellant were

charged with avoiding a military duty, but has no significant

impact here.   Finally, Appellant’s impression that members in

the unit felt uneasy also does not provide a sufficient factual

basis to establish a direct and palpable effect on good order

and discipline.

Conduct of a Nature to Bring Discredit on the Armed Forces

     Conduct of a nature to bring discredit on the armed forces

must have “a tendency to bring the service into disrepute or

which tends to lower it in the public esteem.”   MCM pt. IV,

para. 60.c.(3).   This Court has relied on the prejudice to good

order and discipline clause to establish the second element of

the self-injury offense, rather than the service discrediting

clause.   See Ramsey, 40 M.J. at 75; Taylor, 17 C.M.A. at 597, 38

C.M.R. 395.    In the present case, the CCA also elected to affirm

the Article 134, UCMJ, conviction on the basis of prejudice to

good order and discipline.   Caldwell, 70 M.J. at 632, 636.

     In his guilty plea, Appellant posited that his conduct was

service discrediting because the public might look less

favorably toward the Marine Corps and “[i]t would actually cause

                                 11
United States v. Caldwell, No. 12-0353/MC


a badder [sic] outlook on the superiors” because if exposed, the

public “would look at them as not doing their job.”    Appellant’s

speculation does not establish that his conduct had a tendency

to bring the service into disrepute or to lower it in the public

esteem.   To the contrary, this statement indicates that in

Appellant’s view it was not his actions that would cause

discredit, but the failure of his unit’s leaders that would have

a tendency to cause discredit.3    If this alone were discrediting,

then it would appear to be discrediting for the whistleblower to

disclose fraud or the victim of an offense to report a crime by

a member of the military.

     Here too, Appellant’s plea is not sufficient to demonstrate

the element of discredit.   The Government has not offered, and

the Appellant has not admitted to facts that would make his

conduct discrediting.   Therefore, we need not determine whether,

as a general matter, a bona fide suicide attempt alone may be

service discrediting, or is more properly considered a

noncriminal matter requiring treatment not prosecution.

     That is because, in this case, there is a substantial basis

in fact and law to question Appellant’s plea and the military

judge abused his discretion in accepting the plea.

3
  We take judicial notice of the statement of the Secretary of
Defense that: “[s]uicide prevention is first and foremost a
leadership responsibility.” Memorandum from Sec’y of Defense to
Sec’ys of the Military Dep’ts et al., Suicide Prevention for
Department of Defense Personnel (May 10, 2012).
                                  12
United States v. Caldwell, No. 12-0353/MC


                            DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed as to Charge III and the

specification thereunder and the sentence.     The findings of

guilty to Charge III and its specification are set aside.      The

remaining findings are affirmed.      The record of trial is

returned to the Judge Advocate General of the Navy for remand to

the Court of Criminal Appeals.   That court may either dismiss

Charge III and its specification and reassess the sentence, or

it may order a rehearing.




                                 13
United States v. Caldwell, 12-0353/MC


     RYAN, Judge, with whom STUCKY, Judge, joins (dissenting):

     It is the prerogative of Congress, not this Court, to enact

laws governing the armed forces, including those that define

criminal offenses.   U.S. Const. art. I, § 8, cl. 14.   In Article

134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934,

Congress criminalized “all disorders and neglects to the

prejudice of good order and discipline in the armed forces” and

“all conduct of a nature to bring discredit upon the armed

forces.”   A suicide attempt may constitute self-injury without

intent to avoid service and is conduct punishable under this

article.   See United States v. Ramsey, 40 M.J. 71, 75 (C.M.A.

1994) (holding that “attempted suicide . . . may be a sufficient

basis for a charge of intentional self-infliction of injury to

the prejudice of good order and discipline”).   While the

convening authority’s decision to refer charges against

Appellant in the instant case may well be unfair or ill advised,

the wisdom of that decision is not within our jurisdiction to

review.    See United States v. Bell, 38 M.J. 358, 365, 370

(C.M.A. 1993) (holding that the choice whether to exercise “the

prosecution function . . . is plainly a matter of prosecutorial

discretion, not judicial discretion,” and constitutes a choice

over which “[w]e have no ombudsman’s override . . . however much

we may agree or disagree with it”).
United States v. Caldwell, 12-0353/MC


     Nonetheless, the majority endeavors to distinguish a “bona

fide suicide attempt” from a mere “suicidal gesture,” United

States v. Caldwell, __ M.J. __ (9 n.2) (C.A.A.F. 2013), a

distinction that is unsupported by the statutory elements of

Article 134, UCMJ, or any of the elements of self-injury without

intent to avoid service, as defined by the President.1    Neither

Article 134, UCMJ, nor any element of the charged offense

requires that the conduct be driven by a particular motive.     Cf.

United States v. Wilson, 66 M.J. 39, 47 (C.A.A.F. 2008)

(declining to “redraft Article 125, UCMJ,” to include a mistake

of fact defense “that Congress might have added but did not”).

Yet no one disagrees that the offense of self-injury without

intent to avoid service is well within the scope of conduct made

criminal by Article 134, UCMJ.

     While I question whether punishing either bona fide suicide

attempts or suicidal gestures under Article 134, UCMJ, is wise

or fair, that is a determination to be made by the President and

1
  The Manual for Courts-Martial defines the elements of self-
injury without intent to avoid service:

     (1)   That the accused intentionally inflicted injury upon
           himself or herself;

     (2)   That, under the circumstances, the conduct of the
           accused 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.

Manual for Courts-Martial, United States pt. IV, para. 103a.b.
(2008 ed.) (MCM).
                                 2
United States v. Caldwell, 12-0353/MC


Congress, not this Court.   See United States v. Solis, 46 M.J.

31, 35 (C.A.A.F. 1997) (“[P]olicy arguments . . . must be

directed to Congress and the President for consideration, not to

this Court.”).   It is undoubtedly within the prerogative of the

Secretary of Defense to take an official position that

“[s]uicide prevention is first and foremost a leadership

responsibility” and that commanders “cannot tolerate any actions

that belittle, haze, humiliate, or ostracize any individual,

especially those who require or are responsibly seeking

professional services.”   Memorandum from Sec’y of Defense to

Sec’ys of the Military Departments et al., Suicide Prevention

for Dep’t of Defense Personnel (May 10, 2012).

     However, the Secretary’s view on the appropriate balance

between empathy and prosecution in deterring suicide attempts in

the military does not bear on the altogether different question

whether, as a matter law, a suicide attempt is punishable under

Article 134, UCMJ.   Until Congress or the President takes action

with regard to the criminality of bona fide suicide attempts,

this Court is bound to apply the law as it currently exists.

     Our role is not to create exceptions for certain conduct

that the statute would otherwise plainly reach, but is merely to

determine whether Appellant’s guilty plea was provident.

Because I conclude that “the military judge obtained an adequate

factual basis to support the plea and correctly applied the

                                 3
United States v. Caldwell, 12-0353/MC


law,” United States v. Inabinette, 66 M.J. 320, 321 (C.A.A.F.

2008), one that we would find adequate in any other context, I

respectfully dissent.

                                  A.

        As a threshold matter, however counterintuitive it seems to

me, a suicide attempt that rises to the level of self-inflicting

an injury is punishable conduct under Article 134, UCMJ.    See

Ramsey, 40 M.J. at 75.     Here, “Appellant’s attempted suicide was

not the substantive crime he faced; rather, his attempt to kill

himself was the basis for his crime of self-inflicting an injury

to the prejudice of good order and discipline.”    Id.

        While ostensibly declining to address the issue “whether,

as a general matter, a bona fide suicide attempt alone may be

service discrediting, or is more properly considered a

noncriminal matter requiring treatment not prosecution,”

Caldwell, __ M.J. at __ (12), the majority effectively places

“bona fide” suicide attempts beyond the reach of Article 134,

UCMJ.    In doing so, the majority claims that Ramsey, where the

appellant shot himself in the shoulder while on deployment in

Saudi Arabia, is not “controlling precedent,” id. at __ (9),

because Ramsey was a “suicidal gesture,” as opposed to a bona

fide suicide, case.     Caldwell, __ M.J. at __ (8-10 & n.2).   At

least three flaws undermine this reasoning.



                                   4
United States v. Caldwell, 12-0353/MC


     First, the Court in Ramsey explicitly referred to the

appellant’s conduct as an “attempted suicide” and an “attempt to

kill himself.”   40 M.J. at 75.   Not once did the Court refer to

the appellant’s conduct as a “suicidal gesture” or intimate that

the appellant’s conduct was merely a cry for help, or an attempt

to avoid duty.

     Second, distinguishing the infliction of self-injury as a

mere suicidal gesture from the infliction of self-injury as a

bona fide suicide attempt is inconsistent with the elements of

self-injury without intent to avoid service, which requires only

that the accused intended to injure himself, and does not

require that the accused intended the injury only as a

“gesture.”   See MCM pt. IV, para. 103a.b.(1).

     Third, as a practical matter, courts are ill equipped to

discern whether the subjective impetus behind a servicemember’s

self-inflicted injury was a genuine desire to kill oneself, the

fact that distinguishes a “suicidal gesture,” which the majority

suggests may be punishable, Caldwell, __ M.J. at __ (8-9), from

a “bona fide” suicide attempt, which it suggests may not.     Id.

Such a determination is best left to mental health experts.

See, e.g., Rule for Courts-Martial (R.C.M.) 706(c)(1) (requiring

that, when a mental examination is ordered to determine mental

capacity or mental responsibility, “the matter shall be referred

to a board consisting of one or more persons,” each of whom

                                  5
United States v. Caldwell, 12-0353/MC


“shall be either a physician or a clinical psychologist” and one

of whom must “be either a psychiatrist or a clinical

psychologist”).

                                B.

     The proper inquiry is whether Appellant’s guilty plea was

provident.   The purpose of Care’s providence inquiry is twofold:

“the first is a judicial determination of the providence of the

plea; and the second is a total transcript of the plea inquiry

for the purpose of review.”   United States v. Lanzer, 3 M.J. 60,

62 (C.M.A. 1977) (interpreting United States v. Care, 18 C.M.A.

535, 541, 40 C.M.R. 247, 253 (1969)).   “The fundamental

requirement of plea inquiry under Care and R.C.M. 910 involves a

dialogue in which the military judge poses questions about the

nature of the offense and the accused provides answers that

describe his personal understanding of the criminality of his or

her conduct.”   United States v. Hartman, 69 M.J. 467, 469

(C.A.A.F. 2011).

     It is well settled that “[o]nce a military judge has

accepted an accused’s guilty pleas and entered findings of

guilty, this Court will not set them aside unless we find a

substantial basis in law or fact for questioning the plea.”

United States v. Schweitzer, 68 M.J. 133, 137 (C.A.A.F. 2009)

(citing Inabinette, 66 M.J. at 322). “A military judge’s

decision to accept a guilty plea is reviewed for an abuse of

                                 6
United States v. Caldwell, 12-0353/MC


discretion.”    Inabinette, 66 M.J. at 322.   “A military judge

abuses this discretion if he fails to obtain from the accused an

adequate factual basis to support the plea -- an area in which

we afford significant deference.”     Id.   Under this deferential

standard, “[i]f Appellant’s providence inquiry established the

facts necessary to support the elements of the [Article 134,]

UCMJ offense charged, the plea to that charge is provident.”

United States v. Holbrook, 66 M.J. 31, 32 (C.A.A.F. 2008)

(citing United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F.

1996)).

     Here, in pleading guilty to one specification of self-

injury, in violation of Article 134, UCMJ, Appellant’s

providence inquiry had to establish facts sufficient to support

two elements:   “(1) [t]hat the accused intentionally inflicted

injury upon himself or herself; [and] (2) [t]hat, under the

circumstances, the conduct of the accused 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.”     MCM pt. IV,

para. 103a.b.

     During the providence inquiry, the military judge asked

Appellant about the first element:    (1) “And you [cut your

wrists with a razor blade] to intentionally injure yourself?”

and (2) “It’s fair to say that you did this on purpose?”

Appellant answered both questions in the affirmative.     Appellant

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United States v. Caldwell, 12-0353/MC


confirmed that no one forced or coerced him to cut his wrists,

and his decision was freely made.

      “A military judge can presume, in the absence of contrary

circumstances, that the accused is sane.”   United States v.

Riddle, 67 M.J. 335, 338 (C.A.A.F. 2009); but see Dep’t of the

Navy, Judge Advocate General Instr. 5800.7F, Manual of the Judge

Advocate General, ch. II, pt. E, para. 0218 c., at 2-36 (June

20, 2007) (“In view of the strong human instinct for self-

preservation, suicide and a bona fide suicide attempt, as

distinguished from a suicidal gesture, creates a strong

inference of lack of mental responsibility.”).   However, where,

      the accused’s statements or material in the record
      indicate a history of mental disease or defect on the
      part of the accused, the military judge must determine
      whether that information raises either a conflict with
      the plea and thus a possibility of a defense or only
      the ‘mere possibility’ of conflict.

United States v. Riddle, 67 M.J. 335, 338 (C.A.A.F. 2009)

(internal citation omitted).   “The former requires further

inquiry on the part of the military judge, the latter does not.”

Id.

      Here, the military judge explicitly asked defense counsel,

“do you believe that there’s any M.R.E. 706 issues here?”2

Defense counsel replied that he “believe[d] that [Appellant]


2
  The military judge’s reference to the Military Rules of
Evidence was a misstatement. The correct MCM rule is R.C.M.
706.
                                 8
United States v. Caldwell, 12-0353/MC


knew what he was doing [when he cut his wrists], and he knew

that what he was doing was wrong,” and “at present [Appellant]

has the ability to understand our conversations and to

adequately defend himself.”   Moreover, Appellant stated that (1)

he “made a conscious decision at th[e] time that [he] did not

want to live,” (2) “it wasn’t just temporary insanity,” and (3)

being off the medication that he was prescribed for his delayed

posttraumatic stress disorder (PTSD), personality disorder, and

depression did not give him a reason to inflict the injury on

himself.3

     In light of defense counsel and Appellant’s statements,

coupled with the presumption of sanity, the military judge

reasonably weighed the evidence in determining that further

inquiry under R.C.M. 706 was not required.   See also Riddle, 67

M.J. at 339 (holding that the appellant’s guilty plea was

provident, despite her bipolar diagnosis, where the military

judge (1) “specifically asked her about her mental

responsibility at the time the offenses were committed, ensuring

that at the time of her offenses she understood both what she


3
  Despite the majority’s contention to the contrary, Caldwell, __
M.J. at __ (9), the recognition of PTSD in the DSM, Am.
Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental
Disorders 463-68 (4th ed. 2000) (text rev.), does not go to
whether bona fide suicide attempts are punishable under Article
134, UCMJ. And, while a PTSD diagnosis may raise a defense in
certain circumstances, for the reasons discussed above, it did
not do so here.
                                 9
United States v. Caldwell, 12-0353/MC


was doing and the difference between right and wrong”; and (2)

found “that she appeared to ‘completely understand the nature

and quality of the[] proceedings’”).

     In light of the above, the record clearly establishes a

sufficient factual basis to support the first element of self-

injury -- that he intentionally inflicted injury upon himself.

     As to the second element, Appellant’s guilty plea is

provident if there is a sufficient factual basis for either

clause 1 or clause 2 of the terminal element.   In the course of

the providence inquiry, Appellant admitted that his conduct,

under the circumstances, was both prejudicial to good order and

discipline and service discrediting.4

     “Conduct prejudicial to good order and discipline is

conduct that causes a reasonably direct and palpable injury to

good order and discipline.”   United States v. Cendejas, 62 M.J.

334, 340 (C.A.A.F. 2006).   Here, the facts elicited from

Appellant were that he cut open his wrists in his barracks room,

where he was found by one of his staff noncommissioned officers

(SNCOs), who had to wrap socks around Appellant’s wrists to try

to stop the bleeding and call for medical help.   Appellant was




4
  Appellant stipulated to the following: “That, under the
circumstances, the 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.”
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United States v. Caldwell, 12-0353/MC


then hospitalized.5   According to Appellant, (1) his conduct

“affected the rest of the unit,” and when he came back “a lot of

people were shocked [and] didn’t know how to react”; (2) his

actions made his SNCOs and officers feel as if “they couldn’t

help [him]”; and (3) other servicemembers would wonder if they

could “really go to [the command] and ask for help if [the

command] couldn’t save [Appellant].”6   In light of the above,


5
  In the context of a self-injury charge “[t]he circumstances and
extent of the injury . . . are relevant to a determination that
the accused’s conduct was prejudicial to good order and
discipline, or service-discrediting.” MCM pt. IV, para.
103a.c.(1).
6
  The majority concludes that the “expenditure of medical
resources alone” cannot undermine good order and discipline in
this case, because “then every bona fide suicide attempt
requiring medical attention would be per se prejudicial to good
order and discipline.” Caldwell, __ M.J. at __ (10-11). Even
assuming that the majority is correct in its unsupported
assertion that, absent evidence that the medical resources were
needed elsewhere, the expenditure of medical resources --
including the response of servicemembers serving as emergency
medical personnel -- does not undermine good order and
discipline, id., Appellant’s plea remains provident. During the
plea colloquy, Appellant described his conduct as: (1)
affecting unit morale; (2) engendering a feeling of failure
among his SNCOs and officers; and (3) risking an erosion of
servicemembers’ confidence in their commanders. Under our case
law, these facts provide a more-than-adequate basis to support
Appellant’s plea. See, e.g., United States v. Phillips, 70 M.J.
161, 163 (C.A.A.F. 2011) (holding that to establish a violation
under clause 2 of Article 134, UCMJ, “evidence that the public
was actually aware of the conduct is not necessarily required”);
United States v. Green, 68 M.J. 266, 270 (C.A.A.F. 2010)
(holding that the appellant’s conviction of indecent language
under Article 134, UCMJ, for uttering the sound “mmmm-mmmm-
mmmm,” was legally sufficient); United States v. Vaughan, 58
M.J. 29, 36 n.7 (C.A.A.F. 2003) (finding the appellant’s guilty
plea provident where the military judge asked the accused if she
“agree[d] that if somebody out there heard about this . . . they
                                11
United States v. Caldwell, 12-0353/MC


Appellant’s guilty plea provided a sufficient factual basis

under our case law for finding a “direct and palpable” effect on

good order and discipline.   Cendejas, 62 M.J. at 340.    See,

e.g., United States v. Erickson, 61 M.J. 230, 232-33 (C.A.A.F.

2005) (finding that conduct that undermined an appellant’s

capability and readiness to perform military duties had a direct

and palpable effect on good order and discipline); United States

v. Irvin, 60 M.J. 23, 24-26 (C.A.A.F. 2004) (finding a

sufficient factual basis to support clause 1 and clause 2 of

Article 134’s terminal element where the appellant admitted that

he had possessed child pornography but there was no evidence

that any other servicemembers were aware of, or saw the

depictions).

     In addition, Appellant pleaded to facts that demonstrate

his belief that his conduct was service discrediting.     To be

service discrediting, Appellant’s conduct must “tend to bring

the service into disrepute if it were known.”   United States v.


would look down upon an Air Force member leaving their child
unaccompanied . . . for that lengthy a period of time” and the
accused responded, “Yes, ma’am”); United States v. Schumann, No.
ACM 35119, 2004 CCA LEXIS 167, at *8, 2004 WL 1724818, at *3
(A.F. Ct. Crim. App. July 29, 2004) (finding a guilty plea
provident where the appellant: (1) stipulated that his “failure
to place or maintain funds in his account was . . . to the
prejudice of good order and discipline in the armed forces, and
was of a nature to bring discredit upon the armed forces”; and
(2) simply replied “Yes, Your Honor” when the military judge
asked whether his conduct was service discrediting and would
tend to lessen the esteem that the public had for the military),
petition denied, 60 M.J. 430 (C.A.A.F. 2004).
                                12
United States v. Caldwell, 12-0353/MC


Phillips, 70 M.J. 161, 166 (C.A.A.F. 2011).     Evidence “that

anyone witnessed or became aware of the conduct,” has been held

to be merely one factor to consider.    Id.   As a general matter,

we have required that an accused need only explain how his

conduct would negatively impact public opinion in theory, not

that his conduct has, in fact, had a negative impact on public

opinion.    See, e.g., United States v. Roderick, 62 M.J. 425, 428

(C.A.A.F. 2006) (finding that the appellant’s guilty plea to

clause 2 of the terminal element was provident where he

“admitted that his actions . . . ‘may lower the service in

public esteem’ if people became aware of what he was doing”).

        Here, when asked what the public would think about Marines

attempting suicide, Appellant stated that the public would think

“bad thoughts about [the] whole command.”     Appellant also

observed that if his predicament made the news, the public would

view his supervisors as not having done their jobs, even though

Appellant had never told his supervisors about his depression.

        The majority contends that these facts demonstrate that the

command’s conduct, not Appellant’s conduct, was service

discrediting, despite Appellant’s statement that his command

“knew nothing of [his depression].”    Caldwell, __ M.J. at __

(12).    While it is certainly reasonable to disagree as to

whether particular conduct is or is not service discrediting, it

is not reasonable to say that the military judge abused his

                                  13
United States v. Caldwell, 12-0353/MC


discretion in accepting this plea.   Where, as here, Appellant

sought no help from the command, any negative perception of the

command’s failure to help could reasonably derive from the

Appellant’s decision to attempt suicide by intentionally cutting

his wrists instead of seeking help from his command.    By not

reaching out to his command for help, Appellant precluded the

command’s help.   Thus, it is Appellant’s conduct, not the

command’s conduct, which forms the basis of the public’s

potentially negative view of the military in light of these

events -- a fact that Appellant recognized and admitted.     The

majority ignores the purpose of the Care inquiry, and

Appellant’s own express words as to why he felt his conduct was

service discrediting, obfuscating the issue and flipping the

genesis of the “act” that is potentially service discrediting to

protect hypothetical whistleblowers and victims, despite the

nonexistence of an enumerated Article 134, UCMJ, offense

proscribing such conduct.

     Accordingly, because the factual circumstances as revealed

and admitted to by Appellant objectively support the plea as to

each element of self-injury in violation of Article 134, UCMJ,

the military judge did not abuse his discretion in accepting

Appellant’s guilty plea to this offense as provident under the

ordinary standards employed to review this issue.   Whether to

subject a particular Article 134, UCMJ, guilty plea to

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United States v. Caldwell, 12-0353/MC


heightened scrutiny cannot hinge on this Court’s diagnosis that

the conduct at issue is a “matter requiring treatment,”

Caldwell, __ M.J. at __ (12), rather than a crime -- many of our

cases, including this one, are both.    I question whether the

majority’s approach will prevail in other contexts where the

offense is one they deem more suitable for prosecution, even

though that is not a matter within our purview, but is one

committed to the convening authority’s discretion.   R.C.M. 601.

                               C.

     I would affirm the decision of the Navy-Marine Corps Court

of Criminal Appeals.




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