       This opinion is subject to revision before publication


         UNITED STATES COURT OF APPEALS
                  FOR THE ARMED     FORCES
                        _______________

                       UNITED STATES
                           Appellee
                                v.
                Steven M. TUCKER, Private
                United States Army, Appellant
                          No. 18-0254
                    Crim. App. No. 20150634
     Argued October 24, 2018—Decided November 29, 2018
                 Military Judge: S. Charles Neill
   For Appellant: Captain Timothy G. Burroughs (argued);
   Lieutenant Colonel Christopher Daniel Carrier and Major
   Julie L. Borchers (on brief).
   For Appellee: Captain Catharine M. Parnell (argued);
   Lieutenant Colonel Eric K. Stafford, Major Hannah E.
   Kaufman, Major Cormac M. Smith, and Captain Jessika
   M. Newsome (on brief); Colonel Steven P. Haight.
   Judge OHLSON delivered the opinion of the Court, in
   which Chief Judge STUCKY, and Judges RYAN,
   SPARKS, and MAGGS, joined.
                   _______________

   Judge OHLSON delivered the opinion of the Court.
    A military judge sitting alone as a general court-martial
convicted Appellant, pursuant to his pleas, of one specifica-
tion of conspiracy to obstruct justice, one specification of ag-
gravated sexual assault, two specifications of providing al-
cohol to minors, and one specification of obstruction of
justice, in violation of Articles 81, 120, and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 920, 934
(2012). The military judge sentenced Appellant to a bad-
conduct discharge and confinement for forty-two months. In
accordance with the pretrial agreement, the convening au-
thority approved only so much of the sentence as provided
for a bad-conduct discharge and confinement for thirty-six
months.
   The United States Army Court of Criminal Appeals
(CCA) affirmed the findings and sentence. However, we set
             United States v. Tucker, No. 18-0254/AR
                      Opinion of the Court

aside the CCA’s decision and remanded for a new Article 66,
UCMJ, 10 U.S.C. § 866 (2012), review to evaluate the case in
light of Elonis v. United States, 135 S. Ct. 2001 (2015), and
United States v. Haverty, 76 M.J. 199 (C.A.A.F. 2017). Unit-
ed States v. Tucker, 76 M.J. 257 (C.A.A.F. 2017) (per
curiam). On remand, a divided CCA affirmed the findings
and sentence. We then granted review on the following is-
sue:
       Whether the Army Court erred in holding that the
       minimum mens rea required under clauses 1 and 2
       of Article 134, UCMJ, to separate wrongful from
       innocent conduct is simple negligence.
United States v. Tucker, 78 M.J. 58 (C.A.A.F. 2018) (order
granting review).
    We hold that the minimum mens rea for the Article 134,
UCMJ, offense of providing alcohol to underage individuals
is recklessness. We further hold that because the military
judge incorrectly instructed Appellant on a negligence mens
rea during the Care1 inquiry, Appellant’s guilty plea to one
specification of providing alcohol to an underage individual
is not provident. Accordingly, we reverse the decision of the
CCA.
                                  I.

    Appellant admitted in court that as “one of the few Sol-
diers in the group [who] was old enough to purchase alco-
hol,” he bought a large bottle of licorice-flavored liquor for a
Fort Knox, Kentucky, barracks party involving approximate-
ly ten soldiers. Appellant then shared this liquor with Pri-
vate (PV2) TMG who was under the legal age to drink alco-
hol.
   In addition to other offenses, Appellant was charged
with, and pleaded guilty to, one specification of providing
alcohol to an underage individual—PV2 TMG—in violation
of Article 134, UCMJ.2 At the plea hearing, the military

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

   2  Appellant also entered a guilty plea to a second Article 134,
UCMJ, specification of providing alcohol to a different underage
individual. In regard to that particular specification, the military
judge instructed Appellant that the mens rea of “knowingly” ap-


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                          United States v. Tucker, No. 18-0254/AR
                                   Opinion of the Court

judge instructed Appellant that this general article offense
has the following two elements:
                 One, that on or about 21 June 2014, at or near
              Fort Knox, Kentucky, you unlawfully provided Pri-
              vate [TMG], a person under the age of 21, alcoholic
              beverages; and
                  Two, that under the circumstances, your con-
              duct was to the prejudice of good order and disci-
              pline in the armed forces and of a nature to bring
              discredit upon the armed forces.
    After Appellant stated he did not know—and had no rea-
son to believe—that PV2 TMG was under the age of twenty-
one, the military judge sought clarification from defense and
government counsel about why Appellant’s plea was provi-
dent to the offense as charged. Counsel offered various theo-
ries regarding the applicable mens rea, including general
intent, deliberate ignorance, and strict liability. When the
military judge continued the providence inquiry, Appellant
provided the additional following facts: he did not ask PV2
TMG her age; he was giving alcohol to everyone at the party
and not checking their identification cards; he believed the
legal drinking age was twenty-one years old; and there were
“quite a few people under 21” living in the barracks.
    The military judge eventually concluded that the mens
rea for the charged offense was negligence and instructed
Appellant as follows: “‘Negligence’ is the lack of that degree
of care that a reasonably prudent person would have exer-
cised under the same or similar circumstances.” Appellant
then admitted that he was negligent in providing alcohol to
PV2 TMG because he did not ask or verify her age. Follow-
ing Appellant’s admissions that his conduct was prejudicial
to good order and discipline and of a nature to bring discred-
it on the armed forces, the military judge accepted Appel-
lant’s plea and entered a finding of guilty for the putative

                                                                                                                                     
plied to the offense. Specifically, the military judge told Appellant:
“If you didn’t know at the time that he was under the age of 21,
you are not provident or guilty of this offense.” The military judge
then accepted Appellant’s guilty plea after Appellant admitted to
knowing that this individual was underage. This specification is
not at issue in this appeal.



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            United States v. Tucker, No. 18-0254/AR
                     Opinion of the Court

offense of negligently providing alcohol to an underage indi-
vidual in violation of Article 134, UCMJ.
                              II.

    “We review a military judge’s acceptance of a guilty plea
for an abuse of discretion and questions of law arising from
the guilty plea de novo.” United States v. Simpson, 77 M.J.
279, 282 (C.A.A.F. 2018).
                              A.

    We first turn to the legal question of what mens rea ap-
plies to the Article 134, UCMJ, offense of providing alcohol
to a minor. See United States v. Gifford, 75 M.J. 140, 142
(C.A.A.F. 2016) (stating that the question of whether a mens
rea requirement applies is a question of law).
    The starting point for our analysis is, of course, the plain
language of the statute. Haverty, 76 M.J. at 203–04. Howev-
er, the text of Article 134, UCMJ, does not explicitly contain
a mens rea requirement. See Tucker, 76 M.J. at 258. Moreo-
ver, there is no basis for us to conclude that Congress im-
pliedly sought to purposefully omit a mens rea requirement
for the Article 134, UCMJ, offense of providing alcohol to a
minor. See Gifford, 75 M.J. at 144–46 (explaining why serv-
ing alcohol to a minor is not a public welfare offense).
    Lacking any explicit or implicit guidance from Congress,
we are required to read into the statute the lowest level of
mens rea that “is necessary to separate wrongful conduct
from otherwise innocent conduct.” Elonis, 135 S. Ct. at 2010
(citation omitted) (internal quotation marks omitted). In do-
ing so, we employ “broadly applicable scienter require-
ments.” Id. at 2009 (citation omitted) (internal quotation
marks omitted).
    On appeal before this Court, the parties have offered two
possible mens rea for the Article 134, UCMJ, offense of
providing alcohol to minors; the Government argues for neg-
ligence and Appellant proposes recklessness. In resolving
this issue, we begin by noting that the Supreme Court “ha[s]
long been reluctant to infer that a negligence standard was
intended in criminal statutes.” Elonis, 135 S. Ct. at 2011 (ci-
tation omitted) (internal quotation marks omitted). Indeed,
this Court has recognized in the context of Article 134,


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             United States v. Tucker, No. 18-0254/AR
                      Opinion of the Court

UCMJ, that it is inappropriate to infer a negligence mens
rea “in the absence of a statute or ancient usage.” United
States v. Manos, 8 C.M.A. 734, 735, 25 C.M.R. 238, 239
(1958) (citation omitted) (internal quotation marks omitted);
see also Parker v. Levy, 417 U.S. 733, 754 (1974) (explaining
that Article 134’s “very broad reach” is narrowed by military
authorities and by “less formalized [military] custom and
usage”).
    In the instant case, the Government has failed to identify
any statute, precedent, custom, or ancient usage that would
cause us to conclude that negligence is the proper standard
for the Article 134, UCMJ, offense of providing alcohol to
minors. Therefore, we conclude that negligence is not the
proper mens rea here.3
    Although a negligence mens rea is insufficient, we con-
clude that a recklessness mens rea does sufficiently separate
wrongful conduct from otherwise innocent conduct. In fact, it
is the lowest level of mens rea that does so. See Gifford,
75 M.J. at 146–48. Specifically, a servicemember who pro-
vides alcohol to someone he honestly—but mistakenly—
believes to be of legal drinking age will not be subject to con-
viction, but a servicemember who provides alcohol to some-
one while consciously disregarding the known risk will be
subject to conviction.4 Accordingly, we hold that recklessness
is the proper mens rea for the Article 134, UCMJ, offense of
providing alcohol to minors.

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

a mens rea for an Article 134, UCMJ, offense. See United States v.
Kick, 7 M.J. 82, 84 (C.M.A. 1979) (explaining that negligent homi-
cide is properly punishable under Article 134, UCMJ, in part be-
cause of the “‘special need in the military’” given “‘the extensive
use, handling and operation in the course of official duties of such
dangerous instruments as weapons, explosives, aircraft, vehicles,
and the like’” (citation omitted)). We simply hold that negligence is
an insufficient mens rea with respect to this particular Article
134, UCMJ, offense of providing alcohol to minors.
   4 Contrary to the Government’s argument, we have no basis to
conclude that this modest level of mens rea will unduly impinge
on a commander’s ability to impose good order and discipline. For
instance, commanders may address purely negligent conduct
through administrative action.



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             United States v. Tucker, No. 18-0254/AR
                      Opinion of the Court

                                B.

   Because recklessness is the appropriate mens rea, the
military judge erred when he instructed Appellant on the
mens rea of negligence during Appellant’s plea colloquy.
This error constitutes a substantial basis in law to question
the providency of Appellant’s guilty plea to negligently
providing alcohol to a minor, in violation of Article 134,
UCMJ. See Simpson, 77 M.J. at 282. As we have explained,
there is no such Article 134, UCMJ, offense, and an accused
cannot plead “guilty to conduct that was not criminal.” Unit-
ed States v. Ferguson, 68 M.J. 431, 433 (C.A.A.F. 2010); see
also Article 45(a), UCMJ, 10 U.S.C. § 845(a) (2012) (stating
that if an accused “has entered the plea of guilty improvi-
dently,” the military judge “shall proceed as though he ha[s]
pleaded not guilty”). The military judge therefore abused his
discretion in accepting Appellant’s plea to negligently
providing alcohol to a minor.5 Simpson, 77 M.J. at 282 (ex-
plaining that “[a] ruling based on an erroneous view of the
law is … an abuse of discretion”).
                                III.

       The decision of the United States Army Court of Crimi-
nal Appeals is reversed as to Specification 1 of Charge IV
and the sentence. The finding of guilty to Specification 1 of
Charge IV and the sentence are set aside. The record of trial
                                                            
   5  Appellant’s admission to conduct that facially satisfies a
mens rea of recklessness does not save this guilty plea because the
military judge instructed Appellant only on a negligence mens rea
requirement and, as noted above, there is no Article 134, UCMJ,
offense of negligently providing alcohol to minors. See United
States v. Thomasson, 50 M.J. 179, 180 (C.A.A.F. 1999). Further-
more, (a) unlike in those cases where a military judge “fail[ed] to
define correctly a legal concept or [failed to] explain[] each and
every element of the charged offense to the accused in a clear and
precise manner,” here the military judge affirmatively misstated
the applicable legal concepts and the elements of the charged of-
fense, and (b) the record does not reflect that despite the errone-
ous explanation of the mens rea, Appellant otherwise “knew the
[proper] elements, admitted them freely, and pleaded guilty be-
cause he was guilty.” United States v. Murphy, 74 M.J. 302, 308
(C.A.A.F. 2015) (third alteration in original) (emphasis added) (in-
ternal quotation marks omitted) (quoting United States v. Jones,
34 M.J. 270, 272 (C.M.A. 1992)).



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           United States v. Tucker, No. 18-0254/AR
                    Opinion of the Court

is returned to the Judge Advocate General of the Army for
remand to the Court of Criminal Appeals. That court may
either dismiss Specification 1 of Charge IV and reassess the
sentence, or it may order a rehearing.




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