       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); Lieu-
   tenant Colonel Tiffany D. Pond and Captain Loraima Mor-
   ciglio (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 court-
martial 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 re-
spect to those other specifications is not before this Court.
   2  These other offenses included two specifications of willful dis-
obedience, 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

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 dis-
missed 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 rul-
ing, affirmed the military judge’s ruling, and ordered the rec-
ord 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 follow-
ing 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 Speci-
fications 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,” Ap-
pellee 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.” Specifica-
tion 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).



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             United States v. Moore, No. 20-0119/AR
                      Opinion of the Court

5 November [2012].” The specifications were preferred on De-
cember 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 “re-
moving 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 specifica-
tions 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 specifi-
cations, 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 ac-
cordance with the investigating officer’s earlier recommenda-
tion. The amendments changed the modality of causing bodily
harm in each specification from “by . . . removing her under-
wear, 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 specifi-
cation and partially dismissed the other specification based
on the statute of limitations, and the ACCA affirmed the dis-
missal 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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              United States v. Moore, No. 20-0119/AR
                       Opinion of the Court

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 sub-
sequent events—the initial trial, the setting aside of the find-
ings 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 spec-
ifications before referring them for rehearing, the amend-
ments 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 dis-
agree 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 court-
martial 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, of-
fenses occurring on or after December 26, 2013).



                                  4
              United States v. Moore, No. 20-0119/AR
                       Opinion of the Court

    The power of a convening authority to amend charges pur-
suant to the recommendation of an Article 32, UCMJ, inves-
tigating officer is provided by Article 34(c), UCMJ. The appli-
cable 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 er-
rors in form; and (2) when applicable, to conform to the sub-
stance of the evidence contained in a report under section
832(c) of this title (article 32(c)).”4 The parties agree, also cor-
rectly in our view, that this provision authorized the conven-
ing 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 court-
martial 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 ex-
ercising 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 Ar-
ticle 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 con-
vening authority made changes in 2018. National Defense Author-
ization 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 sub-
stance of the article and does not affect our analysis.



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             United States v. Moore, No. 20-0119/AR
                      Opinion of the Court

about amendments, even though amendments are very com-
mon. This silence leads us to conclude that Congress chose
not to create a different rule for when the statute of limita-
tions 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 specifica-
tion 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 Con-
gress 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 Ar-
ticle 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 deser-
tion, 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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             United States v. Moore, No. 20-0119/AR
                      Opinion of the Court

absence without leave had terminated. Id. at 293, 36 C.M.R.
at 449. On September 24, 1965, the convening authority or-
dered 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 spec-
ification 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 conven-
ing 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 speci-
fication 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 govern-
ment 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 be-
fore the military judge. The Court, however, reaffirmed the princi-
ple from Rodgers that as long as the charges and specifications re-
main the “same,” the tolling of the statute of limitations does not
change. Id. at 125.



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             United States v. Moore, No. 20-0119/AR
                      Opinion of the Court

       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 exercis-
       ing 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 Govern-
ment followed exactly the course recommended in Rodgers.
     In sum, we find no support for Appellee’s position in Arti-
cles 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 specifica-
tion, 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 pol-
icy 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 pre-
ferred. Appellee asserts that a major amendment is “function-
ally” equivalent to a new charge or specification and therefore
should be treated as a new charge or specification, particu-
larly 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 per-
mits changes to charges and specifications prior to referral regard-
less of whether they are major or minor.



                                 8
             United States v. Moore, No. 20-0119/AR
                      Opinion of the Court

Policy arguments are relevant to the question whether Con-
gress 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 Ap-
peals 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.




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