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15, 2011) (unpublished).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
2 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
3 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
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
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
7 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.” 10 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
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
14 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.