## Facts

- Senior Airman Michael T. Nerad, a married U.S. Air Force member, engaged in a consensual sexual relationship with a 17-year-old and possessed sexually explicit photographs of her.
- At a general court-martial (military judge alone), Nerad pleaded guilty and was convicted of multiple offenses, including possession of child pornography under the UCMJ.
- The child-pornography conviction was based on the minor’s sexually explicit images, triggering sex-offender registration consequences.
- The convening authority approved the findings and sentence and denied Nerad’s clemency request to set aside the child-pornography conviction.
- The Air Force Court of Criminal Appeals (AFCCA) found the child-pornography conviction legally and factually sufficient and identified no legal error, but set aside and dismissed that specification as a “unique circumstance,” reasoning it overstated criminality and produced harsh collateral consequences.
- The Judge Advocate General certified the case to the United States Court of Appeals for the Armed Forces (C.A.A.F.) to review whether AFCCA erred in nullifying a legally and factually sufficient conviction.

## Issues

1. Whether a Court of Criminal Appeals may disapprove a finding it deems legally and factually sufficient based solely on equitable or policy disagreement with the prosecution or collateral consequences, under Article 66(c), UCMJ.
2. Whether AFCCA abused its discretion by setting aside the child-pornography finding without reliance on a recognized legal standard.

## Decision

- C.A.A.F. held that while CCAs have broad authority under Article 66(c) to disapprove findings, that authority is not unlimited and must be exercised using legal—not equitable—standards.
- C.A.A.F. concluded AFCCA erred by setting aside the child-pornography conviction based on non-legal considerations (perceived unfairness, overstatement of criminality, and sex-offender registration consequences).
- C.A.A.F. reversed AFCCA’s dismissal of the child-pornography specification and reinstated the guilty finding.

## Legal Principles

- Article 66(c), UCMJ, grants CCAs plenary, de novo power to review legal and factual sufficiency, and to approve only findings and sentences that are correct in law and fact and “should be approved” on the full record.
- A CCA’s determination of what “should be approved” must be anchored in legal standards (e.g., legal or factual insufficiency or other legal error), not in freestanding equitable clemency.
- Purely equitable relief from a conviction is reserved to the convening authority’s clemency function under Article 60, UCMJ, not to appellate courts acting under Article 66(c).
- A CCA abuses its discretion when it disapproves a legally and factually sufficient conviction based solely on its view that prosecution is “unreasonable” or the consequences are too severe.

## Conclusion

C.A.A.F. drew a boundary between judicial review and clemency in the military justice system, holding that a Court of Criminal Appeals cannot set aside a conviction it finds legally and factually sufficient merely because it views the prosecution or collateral consequences as inequitable; AFCCA’s dismissal was reversed and the child-pornography finding reinstated.


United States v. Nerad, 69 M.J. 138 (C.A.A.F. 2010)