UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

DARPINO, KERN, and YOB 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Staff Sergeant DANIEL MORENO 

United States Army, Appellant 

ARMY 20100120 

U.S. Army Medical Department Center and School 

Gregory A. Gross, Military Judge 

Colonel Marian Amrein, Staff Judge Advocate (pretrial) 

Lieutenant Colonel Jonathan E. Cheney, Acting Staff Judge Advocate 

(recommendation) 

Lieutenant Colonel Randolph Swansiger, Staff Judge Advocate (addendum) 

For Appellant: Captain Mathew T. Grady, JA (argued); Colonel Mark Tellitocci, JA; 

Lieutenant Colonel Imogene M. Jamison, JA; Major Laura R. Kesler, JA; Captain 

Mathew T. Grady, JA (on brief); Colonel Mark Tellitocci, JA; Lieutenant Colonel 

Imogene M. Jamison, JA; Major Laura R. Kesler, JA; Captain Mathew T. Grady, JA 

(on supplemental brief); Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene 

M. Jamison, JA; Major Laura R. Kesler, JA; Captain Mathew T. Grady, JA (on brief 

in response to specified issues); Major Richard E. Gorini, JA. 

For Appellee: Captain Stephen E. Latino, JA (argued); Major Christopher B. 

Burgess, JA; Captain Stephen E. Latino, JA; Major Kirsten M. Dowdy, JA; (on 

brief); Major Christopher B. Burgess, JA; Major Ellen S. Jennings, JA; Captain 

Stephen E. Latino, JA (on supplemental brief); Major Amber J. Williams, JA; Major 

Ellen S. Jennings, JA; Captain Stephen E. Latino, JA (on brief in response to 

specified issues). 

24 October 2011 

--------------------------------- 

SUMMARY DISPOSITION 

--------------------------------- 

Per Curiam: 

A military judge, sitting as a general court-martial, convicted appellant, 

pursuant to his pleas, of two specifications of making a false official statement, 

three specifications of larceny of U.S. currency of a value greater than $500, and 

two specifications of fraud against the United States in violation of Articles 107, 
MORENO—ARMY 20100120 

2 

121, and 132, Uniform Code of Military Justice, 10 U.S.C. §§ 907, 921, and 932 

hereinafter [UCMJ]. The military judge sentenced appellant to a bad-conduct 

discharge, confinement for one year, forfeiture of all pay and allowances, and 

reduction to the grade of E1. A pretrial agreement limited the maximum 

confinement to six months and the convening authority approved only so much of 

the sentence as provided for four months’ confinement and the remainder of the 

adjudged sentence. 

 Appellant is a reserve component soldier, who left active duty after his 

commission of the charged offenses. He was subsequently ordered back onto active 

duty for the purpose of trial by court-martial for the misconduct that ostensibly took 

place while he was on active duty. The misconduct involved stealing government 

money by submitting false rental expenses and fraudulent residential leases and 

receiving reimbursement. 

Appellant presents two assignments of error. The first concerns his post-trial 

processing and action, which we find has no merit and does not warrant further 

discussion. The second assignment of error, which appellant raised in a 

supplemental brief, alleged that he “was not properly ordered to active duty by a 

person empowered to convene [a] general courts-martial and appellant should not 

have been sentenced to confinement without prior approval by the Secretary of the 

Army.” In order to resolve this second assignment of error, we specified three interrelated issues regarding whether appellant was properly ordered to active duty for 

his court-martial and whether there were any impacts on the jurisdiction of the 

court-martial, including authority to sentence appellant to confinement. We also 

specified a fourth issue concerning whether one of the larceny specifications 

improperly included a time-frame when the appellant was not on active duty. 

In order to process the appellant’s misconduct under the UCMJ, he was 

required to be ordered back onto active duty. The authority to involuntarily order a 

reservist onto active duty to face court-martial charges is derived from Article 2(d), 

UCMJ. This paragraph limits the authority to General Court-Martial Convening 

Authorities [hereinafter GCMCAs] and it also states that the exercise of this 

authority will be in accordance with regulations prescribed by the President. Under 

Rule for Courts-Martial [hereinafter R.C.M.] 204, the President further delegated to 

the Service Secretaries the authority to prescribe rules and procedures for the 

exercise of court-martial jurisdiction over reserve component personnel. 

In the case at hand, the appellant was involuntarily brought back onto active 

duty by order of the Secretary of the Army for processing under the UCMJ. 

Appellant now contends that this order violated Army Reg. 27-10, Legal Services: 

Military Justice [hereinafter AR 27-10] para. 21-3(b) (16 November 2005),which 

states that only an Active Army General Court-Martial Convening Authority 

[hereinafter AA GCMCA] can order a reservist involuntarily to active duty for the 
MORENO—ARMY 20100120 

3 

purpose of trial by court-martial. Moreover, appellant argues that because the order 

to active duty is invalid, it cannot serve as approval of the order to active duty by 

the Secretary of the Army, as required for a reservist to receive a sentence to 

confinement under UCMJ art. 2 (d)(5). 

 We disagree with appellant and find that the language of AR 27-10 limiting 

authority to AA GCMCAs does not limit the Secretary of the Army’s authority as a 

GCMCA and superior authority to all AA GCMCAs. Rather, we find that the 

regulation is to distinguish between Active and Reserve Army GCMCAs, and in 

doing so, limits the ability of Reserve Army GCMCAs. Moreover, even if we were 

to construe this regulatory provision as a limitation on the Secretary of the Army’s 

statutory authority, because the Secretary of the Army is the promulgating authority 

for this Army Regulation, his ordering of appellant to active duty is well within his 

authority to grant a exception to the provision of the regulation he himself 

promulgated.*

 Appellant cites United States v. Nixon, 418 U.S. 683 (1974) for the 

proposition that once an agency promulgates a regulation pursuant to a statutory 

provision, that regulation has the force of law, and is binding on the issuing agency 

until revoked or invalidated by a court. We find Nixon would not apply to the case 

at hand in that Nixon did not involve an ordinary delegation to a subordinate, but 

rather a very unique relationship between the Attorney General and a Special 

Prosecutor. Nixon, 418 U.S. at 696. We therefore find that appellant’s second 

assignment of error lacks merit. The order by the Secretary of the Army to 

involuntarily bring the appellant back onto active duty was valid and there was 

proper jurisdiction over the appellant. In addition, the order by the Secretary of the 

Army also served as his approval for the subsequent sentence of the appellant to 

confinement as required in UCMJ art. 2(d)(5). 

Our fourth specified issue concerns whether one of the larceny specifications 

improperly included a time-frame when the appellant was not on active duty. In 

accordance with UCMJ art. 2(d)(2)(A), a member of a reserve component may not be 

involuntarily ordered to active duty for processing under the UCMJ except with 

respect to offenses committed while the member was on active duty. With respect to 

Specification 3 of Charge I, upon review of the submissions by the appellant and 

government, we agree with appellant’s claim and the government’s concession that 

the time-frame alleged in the offense [between on or about 5 January 2007 and on or 

about 29 July 2008] was deficient in that some of the time-frame fell outside of 

appellant’s active duty service. We find for the purpose of that specification that the 

appellant’s active duty ended on or about 24 June 2008. Therefore, this court 

 

*

We also note our finding that the AA GCMCA involved in this case clearly 

indicated his intent to have the appellant involuntarily ordered to active duty for the 

court-martial in that he made a written request to Human Resources Command to 

have the appellant involuntarily recalled to active duty and this same AA GCMCA 

referred the case to court. 
MORENO—ARMY 20100120 

4 

affirms only so much of the finding of Specification 3 of Charge I as finds the 

appellant did, at or near Houston, Texas, on divers occasions, between on or about 5 

January 2007 and on or about 24 June 2008, steal U.S. currency of a value greater 

than $500, the property of the U.S. Government. The remaining findings of guilty as 

approved by the convening authority are affirmed. 

 Reassessing the sentence on the basis of the error noted, the entire record, and 

in accordance with the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 

1986) and United States v. Moffeit, 63 M.J 40 (C.A.A.F. 2006), to include the factors 

identified by Judge Baker in his concurring opinion, the court affirms the sentence 

as approved by the convening authority. 

 FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: