Judge Ham reasoned:
Appellant was not on notice that he was subject to criminal prosecution by failing to discover that, unbeknownst to him and without requesting, seeking, or searching for such images, a diskette a friend gave him contained illegal child pornography. Specifically, we hold appellant was not on notice the charged conduct . . . would subject him to criminal sanction under Article 133, UCMJ. Further, we disagree appellant was on notice he had any duty to use due care to review the diskette his friend provided to "make sure there was nothing illegal" on it. There is no custom, regulation, or otherwise to the contrary.Id., slip op. at 10 (footnote omitted).
She concluded that "no reasonable officer would recognize that appellant’s unwitting conduct would bring dishonor or disrepute upon himself or his profession. To the contrary, any reasonable officer would doubt these acts constitute conduct unbecoming an officer." Id., slip op. at 11.