Electronic Benchbook Editor’s Note: THIS IS THE PROVIDENCE INQUIRY VERSION OF THE OFFENSE. Some instructions below apply to members cases, would not be appropriate for a guilty plea and should be deleted. They have been included in the event the accused, during providence, raises an issue that would require further discussion. In that event, the instruction must be properly tailored for use at a guilty plea.

In (the) specification (____) of (the) (Additional) charge (___), you are charged with the offense of __________________________, in violation of Article ___, UCMJ. By pleading guilty to this offense, you are admitting that the following elements are true and accurately describe what you did:

In (the) specification (____) of (the) (additional) Charge (____), the accused is charged with the offense of __________________________________, in violation of Article ___, UCMJ. In order to find the accused guilty of this offense, you must be convinced by legal and competent evidence beyond reasonable doubt:

The offense charged,__________, and the lesser included offense of __________ differ (in that the offense charged requires as (an) element(s) that you be convinced beyond a reasonable doubt that (state the element(s) applicable only to the greater offense), whereas the lesser offense of __________ does not include such (an) element(s).

(When an LIO involves lesser specific intent) However, the lesser offense of __________ does require that you be satisfied beyond a reasonable doubt that the accused’s act(s) (was) (were) done (recklessly) (negligently) (with the specific intent to __________).

(When attempt is an LIO) However, the lesser offense of attempted _________ does require that you be satisfied beyond a reasonable doubt that the accused’s act(s) (was) (were) done with the specific intent to commit the offense of __________, that the act(s) amounted to more than mere preparation and that the act(s) apparently tended to bring about the commission of the offense of __________.

The court is further advised that the offense of __________ is a lesser included offense of the offense set forth in (the) specification (___) of (the) (additional) Charge (__). When you vote, if you find the accused not guilty of the offense charged, that is ________, then you should consider the lesser included offense of ______________, (also) in violation of Article ______, UCMJ. In order to find the accused guilty of this lesser offense, you must be convinced by legal and competent evidence beyond reasonable doubt:

This lesser included offense differs from the lesser included offense I just discussed with you previously in that the previous lesser included offense of __________ requires as (an) essential element(s) that you be convinced beyond a reasonable doubt that (state the element(s) applicable only to the previous lesser offense) whereas this lesser offense of __________ does not include such (an) element(s).

(When an LIO involves lesser specific intent) However, the lesser offense of __________ does require that you be satisfied beyond a reasonable doubt that the accused’s act(s) (was) (were) done (recklessly) (negligently) (with the specific intent to __________).

(When attempt is a subsequent LIO) However, the lesser offense of attempted _________ does require that you be satisfied beyond a reasonable doubt that the accused’s act(s) (was) (were) done with the specific intent to commit the offense of __________, that the act(s) amounted to more than mere preparation and that the act(s) apparently tended to bring about the commission of the offense of __________.

You are advised another lesser included offense of the offense alleged in (the) specification (__) of (the) (additional) Charge (__) is the offense of _____ (also) in violation of Article _____. When you vote, if you find the accused not guilty of the prior lesser included offense, then you should consider the lesser-included offense of , (also) in violation of Article , UCMJ. In order to find the accused guilty of this lesser offense, you must be convinced by legal and competent evidence beyond reasonable doubt:

MJ: Do you understand the elements (and definitions) as I have read them to you?

ACC: (Responds.)

MJ: Do you have any questions about any of them?

ACC: (Responds.)

MJ: Do you understand that your plea of guilty admits that these elements accurately

describe what you did?

ACC: (Responds.)

MJ: Do you believe and admit that the elements (and definitions taken together) correctly describe what you did?

ACC: (Responds.)

MJ: At this time, I want you to tell me why you are guilty of the offense listed in (the) specification (___) of (the) charge (___). Tell me what happened.

ACC: (Responds.)

NOTE: The MJ must elicit the facts leading to the guilty plea by conducting a direct and personal examination of the accused as to the circumstances of the alleged offense(s). The MJ must do more than elicit legal conclusions. The MJ’s questions should be aimed at developing the accused’s version of what happened in the accused’s own words, and determining if the acts or omissions encompass each and every element of the offense(s) to which the guilty plea relates. The MJ must be alert to the existence of any inconsistencies or possible defenses raised by the stipulation or the accused’s testimony and, if they arise, the MJ must discuss them thoroughly with the accused. The MJ must resolve them or declare the plea improvident to the applicable specification(s).

NOTE: After obtaining the factual basis from the accused, the MJ should secure the accused’s specific admission as to each element of the offense, e.g., as follows:

MJ: Do you admit that you (left your unit on ______) (______) ?

ACC: (Responds.)

MJ: Do you admit that you (left without authority from someone who could give you leave) (______)?

ACC: (Responds.)

MJ: And that (you did not return until ______) (______)?

ACC: (Responds.)

NOTE: After covering all offenses to which the accused pled guilty, the MJ continues as follows:

MJ: Does either counsel believe any further inquiry is required?

TC/DC: (Respond.)