This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellant

v.

Antonio T. MOORE, Private

United States Army, Appellee

No. 20-0119

Crim. App. No. 20180692

Argued March 17, 2020—Decided April 30, 2020

Military Judge: Kenneth Shahan

For Appellant: Captain Allison L. Rowley (argued); Colonel

Steven P. Haight, Lieutenant Colonel Wayne H. Williams,

and Major Jonathan S. Reiner (on brief).

For Appellee: Major Benjamin A. Accinelli (argued); Lieutenant Colonel Tiffany D. Pond and Captain Loraima Morciglio (on brief).

Judge MAGGS delivered the opinion of the Court, in 

which Chief Judge STUCKY, and Judges RYAN, 

OHLSON, and SPARKS, joined.

_______________

Judge MAGGS delivered the opinion of the Court.

At a rehearing, a military judge sitting as a general courtmartial found Appellee guilty, contrary to his pleas, of two 

specifications of sexual assault, in violation of Article 120, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 

(2012).1 For these offenses, and several other offenses that

had been affirmed in earlier proceedings,2 the military judge 

 

1 The military judge dismissed, prior to findings, three other 

specifications of sexual assault that the convening authority also 

had referred to the rehearing. The military judge’s ruling with respect to those other specifications is not before this Court. 

2 These other offenses included two specifications of willful disobedience, one specification of sexual assault, and one specification 

of assault consummated by battery, in violation of Articles 90, 120, 

and 128, UCMJ, 10 U.S.C. §§ 890, 920, 928 (2012). United States v. 

Moore, No. ARMY 20140875, 2017 CCA LEXIS 191, at *2, 2017 WL 
United States v. Moore, No. 20-0119/AR

Opinion of the Court

2

sentenced Appellee to confinement for thirteen years and a 

dishonorable discharge.

In a post-trial motion, Appellee asked the military judge

to dismiss the two specifications of sexual assault based on 

the five-year period of limitations in Article 43(b), UCMJ, 10 

U.S.C. § 843(b) (2012). In response, the military judge dismissed one specification in its entirety and a portion of the 

other specification that addressed conduct occurring outside 

the five-year period. Pursuant to Article 62(a)(1)(A), UCMJ,

10 U.S.C. § 862(a)(1)(A) (2012), the Government appealed the

military judge’s ruling on the motion to dismiss to the U.S. 

Army Court of Criminal Appeals (ACCA). The ACCA initially 

set aside the military judge’s ruling. United States v. Moore,

No. ARMY Misc. 20180692, 2019 CCA LEXIS 290, at *1619, 

2019 WL 2949389, at *810 (A. Ct. Crim. App. July 3, 2019). 

On reconsideration, however, the ACCA reversed its prior ruling, affirmed the military judge’s ruling, and ordered the record to be returned to the military judge for action consistent 

with its ruling. United States v. Moore, No. ARMY Misc. 

20180692, 2019 CCA LEXIS 388, at *12–13, 2019 WL 

4885895, at *5 (A. Ct. Crim. App. Oct. 2, 2019). The ACCA 

denied the Government’s petition for a rehearing en banc. The 

Judge Advocate General of the Army then certified the following question to this Court: “Did the Army Court err when, 

upon reconsideration, it determined that the 5-year statute of 

limitations barred the rehearing of the two sexual assault 

specifications?”

I. Background

The two specifications at issue were designated as Specifications 2 and 3 of Additional Charge I. As initially preferred, 

Specification 2 alleged that “on divers occasions between on 

or about 6 November 2012 and on or about 3 July 2013,” Appellee sexually assaulted AR “by causing penetration of Ms. 

AR’s vulva with [Appellee’s] penis, by causing bodily harm to 

her, to wit: removing her underwear, placing his hands on her 

buttocks, and pressing her down with his hands.” Specification 3 alleged that Appellee had sexually assaulted AR in the 

same way “between on or about 28 June 2012 and on or about 

 

1136929, at *1 (A. Ct. Crim. App. Mar. 23, 2017), aff’d, 77 M.J. 198 

(C.A.A.F. 2018).
United States v. Moore, No. 20-0119/AR

Opinion of the Court

3

5 November [2012].” The specifications were preferred on December 11, 2013, and were received by the officer exercising 

summary court-martial convening jurisdiction the same day.

Following an investigation under Article 32, UCMJ, 10 

U.S.C. § 832 (2012), the investigating officer recommended 

changing the modality of the charged bodily harm from “removing her underwear, placing his hands on her buttocks, 

and pressing her down with his hands” to the “non-consensual 

sexual act” itself. The investigating officer explained that he 

had found no evidence that Appellee had performed the acts

averred in the original specification. The convening authority, 

however, did not amend Specifications 2 and 3 of Additional 

Charge I at that time and, instead, referred the two specifications as initially preferred.

A general court-martial found Appellee guilty of these two 

specifications and of other offenses. On appeal, however, the 

ACCA set aside the findings with respect to these two specifications, and several others, because the military judge had 

given an improper instruction regarding propensity evidence.

Moore, 2017 CCA LEXIS 191, at *1314, 2017 WL 1136929, 

at *56 (citing United States v. Hills, 75 M.J. 350, 354

(C.A.A.F. 2016)). The ACCA authorized a rehearing on the 

specifications that it had set aside. Id. at *14, 2017 WL 

11366929, at *6. This Court affirmed. Moore, 77 M.J. 198.

The convening authority ordered a rehearing. On March 

16, 2018, before referring the two specifications at issue to the 

court-martial, the convening authority amended them in accordance with the investigating officer’s earlier recommendation. The amendments changed the modality of causing bodily 

harm in each specification from “by . . . removing her underwear, placing his hands on her buttocks, and pressing her 

down with his hands” to “by penetrating her vulva with his 

penis.” As described above, the military judge found Appellee

guilty of these specifications but later dismissed one specification and partially dismissed the other specification based 

on the statute of limitations, and the ACCA affirmed the dismissal of these charges.

II. Discussion

The parties’ positions in this case are easily stated. The 

Government argues that the statute of limitations for the two 
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Opinion of the Court

4

specifications at issue was tolled before the five-year period of 

limitations had run, on December 11, 2013, when the officer 

exercising court-martial convening jurisdiction received the 

specifications. The Government further contends that no subsequent events—the initial trial, the setting aside of the findings on appeal, or the convening authority’s amendment of 

the specifications before referral for rehearing—affected this 

tolling of the statute of limitations. Appellee responds that,

while the convening authority could lawfully amend the specifications before referring them for rehearing, the amendments to the specifications undid the original tolling of the 

statute of limitations. Appellee further asserts that because 

the conduct alleged in the amended specifications occurred 

more than five years before the convening authority made the 

amendments, the statute of limitations requires dismissal of 

those specifications. We agree with the Government and disagree with Appellee, based on the text of the relevant UCMJ 

articles and on our precedent.

A.

The relevant statute of limitations appears in Article 

43(b)(1), UCMJ, which provides:

Except as otherwise provided in this section (article), 

a person charged with an offense is not liable to be 

tried by court-martial if the offense was committed 

more than five years before the receipt of sworn 

charges and specifications by an officer exercising 

summary court-martial jurisdiction over the 

command.3

The parties agree, correctly in our view, that this provision

did not bar the original trial of the two specifications at issue 

because the offenses alleged in those specifications occurred 

in 2012 and 2013, and the officer exercising summary courtmartial convening jurisdiction received the charge sheet in 

2013.

 

3 The statute of limitations for sexual assault offenses has since 

been amended to eliminate the limitations period for these offenses. 

National Defense Authorization Act for Fiscal Year 2014, Pub. L. 

No. 113-66, § 1703(a), (c), 127 Stat. 672, 958 (2013) (eliminating any

limitations period for Article 120(b) and Article 120b(b), UCMJ, offenses occurring on or after December 26, 2013).
United States v. Moore, No. 20-0119/AR

Opinion of the Court

5

The power of a convening authority to amend charges pursuant to the recommendation of an Article 32, UCMJ, investigating officer is provided by Article 34(c), UCMJ. The applicable version of this article provides: “Before referral for trial 

by general court-martial or special court-martial, changes 

may be made to charges and specifications—(1) to correct errors in form; and (2) when applicable, to conform to the substance of the evidence contained in a report under section 

832(c) of this title (article 32(c)).”

4 The parties agree, also correctly in our view, that this provision authorized the convening authority’s changes to the two specifications at issue to 

make them conform to the evidence. See United States v. 

Stout, 79 M.J. 168 (C.A.A.F. 2019).

The parties’ disagreement is about whether the statute of 

limitations remained tolled after the convening authority 

amended the two specifications. Appellee contends that the 

amended specifications are no longer the same specifications

that were received by the officer exercising summary courtmartial jurisdiction in December 2013 but are instead new 

specifications. He therefore contends that the amendments to 

the specifications made the previous tolling ineffective. We 

disagree with Appellee because the text of Articles 34 and 43, 

UCMJ, and our precedent do not support this position.

Nothing in Article 43, UCMJ, suggests that a charge or 

specification that was timely when received by the officer exercising summary court-martial jurisdiction might become 

untimely if the convening authority makes changes to the 

charge or specification that are authorized by Article 34(c), 

UCMJ. On the contrary, Article 43, UCMJ, says nothing 

 

4 10 U.S.C. § 834(c) (2018). We conclude that this version of Article 34, UCMJ, applies because it was the version that was in effect 

when the convening authority made changes to the specifications 

on March 16, 2018. We note that Congress slightly changed the text 

of Article 34(c), UCMJ, in 2016, which was between the time when 

the charges were first preferred in 2013 and the time when the convening authority made changes in 2018. National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 5205, 130 

Stat. 2000, 2907 (Dec. 23, 2016) (amending Article 34, UCMJ). This 

amendment, however, does not appear to have changed the substance of the article and does not affect our analysis. 
United States v. Moore, No. 20-0119/AR

Opinion of the Court

6

about amendments, even though amendments are very common. This silence leads us to conclude that Congress chose 

not to create a different rule for when the statute of limitations is tolled in cases where the convening authority makes 

authorized amendments.

Likewise, when a convening authority makes changes to 

charges or specifications that are authorized by Article 34(c),

UCMJ, nothing in the language of that article suggests that 

the convening authority is creating a new charge or specification as opposed to merely amending an existing charge or 

specification. And Article 34(c), UCMJ, does not indicate in 

any way that a properly amended charge or specification 

must go back to the officer exercising summary court-martial 

jurisdiction to toll the statute of limitations, or that the date 

of amendment marks the date when the original charge or 

specification was considered “received” by that officer. If Congress had intended either of those results, Congress easily 

could have indicated when changes create new charges and 

what effect creating new charges would have on the statute 

of limitations. The silence in Article 34(c), UCMJ, about these 

subjects leads us to conclude that changes to charges and 

specifications that are authorized by Article 34(c), UCMJ, do 

not affect the application of the statute of limitations.

5

Appellee’s position is also contrary to precedent. In United 

States v. Arbic, the officer exercising summary court-martial

jurisdiction received a sworn charge against the appellant on

January 17, 1964. 16 C.M.A. 292, 29293, 36 C.M.R. 448, 

44849 (1966). The specification of the charge alleged that the 

appellant had deserted on August 15, 1962, in violation of Article 85, UCMJ, 10 U.S.C. § 885 (1958). Id., 36 C.M.R. at 448–

49. Following an investigation under Article 32, UCMJ, the 

investigating officer recommended changing the specification 

to allege the offense of absence without leave in violation of 

Article 86, UCMJ, 10 U.S.C. § 886 (1958), instead of desertion, and specifying August 10, 1965, as the date when the 

 

5 As noted above, the parties agree that Article 34(c), UCMJ, 

authorized the changes to the specifications at issue. Accordingly, 

the question of what kinds of changes are authorized by Article 

34(c), UCMJ, is not presented in this case, and we do not address 

it. See Stout, 79 M.J. at 168.
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Opinion of the Court

7

absence without leave had terminated. Id. at 293, 36 C.M.R. 

at 449. On September 24, 1965, the convening authority ordered these amendments to be made and referred the case to 

a general court-martial. Id., 36 C.M.R. at 449.

The appellant then moved to dismiss the charge and specification based on the period of limitations in Article 43, 

UCMJ, which at that time was three years for the offense of 

absence without leave. Id., 36 C.M.R. at 449. The appellant’s 

theory was nearly identical to Appellee’s theory in this case.

He argued that receipt of the charge and specification by the 

summary court-martial convening authority on August 15, 

1962, did not toll the statute of limitations under Article 43, 

UCMJ, because the specification as amended by the convening authority was a “new” specification. Id., 36 C.M.R. at 449. 

The Court, however, rejected the appellant’s argument. It 

concluded that the specification as changed by the convening 

authority was an “amended” specification and not a “new” 

specification. Id. at 294–95, 36 C.M.R. at 450–51. As a result, 

the statute of limitations pertaining to the charge and specification were tolled when they were originally received by the 

court-martial convening authority, not when they were 

amended. Id., 36 C.M.R. at 450–51.

In Arbic, the Court favorably cited dicta in United States 

v. Rodgers, 8 C.M.A. 226, 24 C.M.R. 36 (1957).

6 In Rodgers,

the government had prepared two charge sheets. The first 

was received by the officer exercising summary court-martial 

convening jurisdiction within the period of limitations but the 

second was received after the expiration of this period. Id. at 

22728, 24 C.M.R. at 3738. The Court held that the government erred in attempting to proceed under the second charge 

sheet rather than simply amending the original charge sheet 

as authorized by Article 34, UCMJ. Id., 24 C.M.R. at 37–38. 

In dicta later quoted in Arbic, the Court explained:

 

6 In United States v. Miller, 38 M.J. 121, 124 (C.A.A.F. 1993), 

this Court overruled language in Rodgers, not relevant here, that 

emphasized the importance of having the original charge sheet before the military judge. The Court, however, reaffirmed the principle from Rodgers that as long as the charges and specifications remain the “same,” the tolling of the statute of limitations does not 

change. Id. at 125. 
United States v. Moore, No. 20-0119/AR

Opinion of the Court

8

It would have been perfectly proper to have brought 

the accused to trial on the original charge sheet 

which was seasonably filed with the officer exercising summary court-martial jurisdiction. All that 

would have been necessary was an amendment to 

[the relevant specification].

Id. at 23031, 24 C.M.R. at 4041. In this case, the Government followed exactly the course recommended in Rodgers.

In sum, we find no support for Appellee’s position in Articles 34 and 43, UCMJ, and we view his position as contrary 

to Arbic and Rodgers. We therefore conclude that the statute 

of limitations does not require dismissal of any part of the two 

specifications at issue in this case.

B.

Two additional points deserve brief mention. First, the 

ACCA analyzed this case under Rule for Courts-Martial

(R.C.M.) 603(d). Moore, 2019 CCA LEXIS 388, at *37, 2019 

WL 4885895, at *24. This provision, as it existed prior to 

2019, specified that if major changes are made to a specification, the specification must be preferred anew.

7 In Stout, this 

Court held that R.C.M. 603 does not apply when a convening 

authority amends a specification under Article 34(c), UCMJ,

prior to referring it to trial. 79 M.J. at 16970. Accordingly, 

whether the amendments to the specifications at issue might 

be characterized as major or minor is not an issue before us.

Second, Appellee has advanced what we construe as a policy argument for why the tolling of the statute of limitations 

should occur when a charge or specification is subjected to 

major amendments rather than when it was initially preferred. Appellee asserts that a major amendment is “functionally” equivalent to a new charge or specification and therefore 

should be treated as a new charge or specification, particularly when the amendment seems to lessen the Government’s 

burden of proof. We take no position on this policy argument.

 

7 As amended in 2019, the current version of R.C.M. 603 permits changes to charges and specifications prior to referral regardless of whether they are major or minor.
United States v. Moore, No. 20-0119/AR

Opinion of the Court

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Policy arguments are relevant to the question whether Congress should amend Articles 34 and 43, UCMJ, not what the

text of these Articles currently says.

III. Conclusion

The certified question is answered in the affirmative. The 

judgment of the United States Army Court of Criminal Appeals upon reconsideration, and the ruling of the military 

judge on the motion, dismissing Specification 3 entirely and a 

portion of Specification 2 of Additional Charge I, are reversed.

The case is returned to the Judge Advocate General of the 

Army for remand to the court-martial for further proceedings 

consistent with this opinion.