## UNITED STATES ARMY COUR T 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 Depart ment Center and School Gregory A. Gross, Military Judge Colonel Marian Amrein, Staff Judge Advocate (pretrial)

Lieutenant Colonel Jona than E. Cheney, Acting Staff Judge Advocate (recommendation) Lieutenant Colonel Randolph Swansige r, Staff Judge Advocate (addendum)

For Appellant: Ca ptain Mathew T. Grady, JA (argued); Colone l Mark Tellitocci, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Laur a R. Kesler, JA; Captain Mathew T. Grady, JA (on brief); Colonel Mark Tellit occi, JA; Lieutenant Colonel Imogene M. Jamison, JA; Majo r Laura R. Kesler, JA; Capt ain Mathew T. Grady, JA (on supplemental brief); Co lonel 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 Step hen E. Latino, JA (argue d); Major Christopher B. Burgess, JA; Captain Stephen E. Latin o, JA; Major Kirsten M. Dowdy, JA; (on brief); Major Christo pher B. Burgess, JA; Major E llen S. Jennings, JA; Captain Stephen E. Latino, JA (on supplemental brief); Majo r 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-martia l, convicted appellant, pursuant to his pleas, of two specificat ions of making a fals e official statement, three specifications of larc eny of U.S. currency of a value greater than $500, and two specifications of fraud against the Unit ed States in violation of Articles 107,MORENO—ARMY 20100120

2 121, and 132, Uniform Code of Military Ju stice, 10 U.S.C. §§ 907, 921, and 932 hereinafter [UCMJ]. The m ilitary judge sentenced ap pellant to a bad-conduct discharge, confinement for one year, forfeitu re of all pay and allowances, and reduction to the grade of E1. A pretrial agreem ent limited the maximum

confinement to six months a nd the convening authority ap proved only so much of the sentence as provided for four months’ confinemen t and the remainder of the adjudged sentence.

Appellant is a reserve co mponent soldier, who left active duty after his commission of the charged o ffenses. 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 mi sconduct involved st ealing government money by submitting false rental expenses and fraudulent resi dential leases and receiving reimbursement.

Appellant presents two assignm ents of error. The firs t concerns his post-trial processing and action, whic h we find has no merit an d does not warrant further

discussion. Th e 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 conf inement without prior approval by the Secretary of the Army.” In order to resolve this second a ssignment of error, we specified three interrelated issues regarding whet her 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 sent ence appellant to confinement. We also specified a fourth issue concerning whet her one of the lar ceny specifications improperly included a time- frame when the appe llant was not on active duty.

In order to proc ess the appellant’s misconduct under the UCMJ, he was required to be ordere d back onto active duty. The au thority to involuntarily order a

reservist onto active dut y to face court-martial charges is derived from Article 2(d), UCMJ. This paragraph limits the authority to General Court-Martial Convening Authorities [hereinafter GCMC As] and it also states th at the exercise of this authority will be in accordance with regula tions prescribed by the President. Under Rule for Courts-Martial [her einafter R.C.M.] 204, the Pr esident further delegated to the Service Secretaries the authority to prescribe rules and procedures for the

exercise of court-martial jurisdiction over reserve component pers onnel.

In the case at hand, the appellant was involuntarily brought back onto active duty by order of the Secret ary of the Army for proc essing under the UCMJ. Appellant now contends that this order violated Army Reg. 27-10, Le gal Services: Military Justice [her einafter AR 27-10] para. 21-3 (b) (16 November 2005),which states that only an Acti ve Army General Court-Ma rtial Convening Authority [hereinafter AA GCMCA] can or der a reservist involuntaril y to active duty for theMORENO—ARMY 20100120

3 purpose of trial by court-martial. More over, 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 UC MJ 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 Secret ary of the Army’s authority as a GCMCA and superior authority to all AA GCMCAs. Rather, we find that the regulation is to distingui sh between Active and Rese rve Army GCMCAs, and in doing so, limits the ability of Reserve Army GCMCAs. Mo reover, 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 pr omulgating authority for this Army Regulation, his ordering of appellant to active duty is well within his authority to grant a except ion to the pr ovision of the regulation he himself promulgated. * Appellant cites United States v. Nixon, 418 U.S. 683 (1974) for the proposition that once an ag ency promulgates a regulation pursuant to a statutory provision, that regulation has the force of law, and is bi nding on the i ssuing agency

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

at hand in that Nixon did not involve an ordinary de legation to a su bordinate, but rather a very unique relationship betw een the Attorney General and a Special

Prosecutor. Nixon , 418 U.S. at 696. We therefor e find that appellant’s second assignment of error lacks merit. The order by the Secretary of the Army to involuntarily bring the appellant back on to active duty was valid and there was proper jurisdiction over the appellant. In add ition, 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 appe llant was not on ac tive duty. In

accordance with UCMJ art. 2(d)(2)(A), a member of a reserve component may not be involuntarily ordered to active duty fo r processing under the UCMJ except with respect to offenses committed while the memb er was on active dut y. With respect to Specification 3 of Charge I, upon review of the submissions by the appellant and government, we agree with appellant’s cl aim and the government’ s concession that the time-frame alleged in the offense [betw een on or about 5 Ja nuary 2007 and on or about 29 July 2008] was defi cient in that some of the time-frame fell outside of appellant’s active duty service. We find fo r the purpose of that specification that the appellant’s active duty ende d on or about 24 June 2008. Theref ore, this court

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

indicated his intent to have the appellant involunta rily ordered to ac tive duty for the

court-martial in that he made a written requ est to Human Res ources Command to have the appellant involunta rily 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 Ch arge 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. Governme nt. The remaining find ings of guilty as approved by the convening au thority 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: