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

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 inter-
related 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



                                           2
MORENO—ARMY 20100120

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, 

(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. 

. 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.


                                           3
MORENO—ARMY 20100120

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, 

(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.

                                        FORTHE
                                       FOR  THECOURT:
                                                COURT:




                                       MALCOLM
                                        MALCOLMH.    H.SQUIRES,
                                                        SQUIRES,JR.
                                                                 JR.
                                       Clerk
                                        ClerkofofCourt
                                                  Court




                                          4