(concurring in the result):
I concur that the record of trial presents a legally and factually sufficient basis for affirming the guilty findings and the approved sentence. I must, however, distance myself from the court’s treatment of Militaky Rule OF EVIDENCE 414, MANUAL FOR C0URTS-MaR-tial, United States (2005 ed.).
I am aware of the volumes of legislative history concerning the impact of child pornography, and for the purposes of this concurrence I do not dispute the Congressional finding that child pornography is a serious form of child abuse. For the purpose of this concurrence, I can even agree with much of what the majority says in reaching its conclusion. I part company with the majority, however, on whether receipt or possession of child pornography constitutes a “qualifying offense” under Mil. R. Evid. 414 and whether, in the case at bar, the military judge properly exercised his duty as a gatekeeper by allowing the members to consider file names to be equivalent to child pornography.
Mil. R. Evid. 414 permits the Government to introduce “evidence of the accused’s commission of one or more offenses of child molestation.” The rule defines an offense of child molestation to mean an offense punishable under the UCMJ, or a crime under Federal law or the law of a State, that involved (1) any sexual act or sexual contact or (2) any sexually explicit conduct with children proscribed by the UCMJ, federal law, or state law. Mil. R. Evid 414(d). “Sexually explicit conduct” for the purposes of the Rule means actual or simulated sexual intercourse; bestiality; masturbation; sadistic or masochistic abuse; or lascivious exhibition of the genitals.1 Mil. R. Evid. 414(g).
All the offenses included in the Military Rule involve being in the physical presence of a child. Notably, the Military Rule does not include “communicating indecent language to a child” or “transmitting obscene matter to a child” among the qualifying offenses. As noted in the Drafters’ Analysis of the Military Rule and in the few cases interpreting the Military Rule, our rule is based on Federal Rule of Evidenoe 414.2 The *732Federal Rule notably also does not include these sorts of offenses (the “obscenity” chapter of title 18 is Chapter 71; the Federal Rule mentions only Chapters 109A and 110). I am inclined to conclude, therefore, that the Rule is intended to cover only those acts that have been committed upon or in the presence of the child by the accused.
The question then becomes whether possession or attempted possession of child pornography, which coneededly involves violations of either federal or state law, constitutes “sexually explicit conduct” under the Rule. The definitions of “sexual act” and “sexual contact” in the Military Rule eliminate considering possession of child pornography on those bases. The real question, therefore, is whether possessing items that contain depictions of sexually explicit conduct (i.e., child pornography) is the same thing as actually engaging in sexually explicit conduct.3
The Federal Rule was created in the drafting of the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322. United States v. Wright, 53 M.J. at 478, 480 (C.A.A.F.2000). Coincidentally, that same public law contained the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program, codified at 42 U.S.C. § 14071. See generally United States v. Seymour, 468 F.3d 378, 384 (6th Cir.2006). The Wetter-ling Program requires that the Attorney General provide guidelines to the states on who must register as a sex offender. It provides for broad categories of “qualifying offenses,” and among those offenses it lists production or distribution of child pornography, as described in section 2251, 2252, or 2252A of title 18. 42 U.S.C. § 14071(a)(3)(A)(viii). It does not include among its provisions a requirement to register for possessing or receiving child pornography, nor does it include transmitting obscene matter or communicating indecent language among its provisions; presumably, if receipt or possession of child pornography had been deemed as serious as the other “registration” offenses, Congress would have included them in the Wetterling regime and carried them forward into the Rules of Evidence.
The inclusion of production and distribution of child pornography makes sense in the context of the Wetterling Act, as the other “qualifying offenses” all involve activities that suggest that the defendant was in the physical presence of the child at some point during the commission of the offense.4 Comparing the “registration” offenses to the categories listed under Federal Rule 414, one sees that the Rule is practically in lockstep with the statute.
A further problem that I have with including possessing or receiving child pornography among the qualifying offenses under either Federal or Military Rule 414 is that the *733definition of “child” in section 2256 of title 18 is different from the definition in both Federal Rule 414 and Military Rule 414. Under the statutory provision, a “child” is under 18. Under the Federal Rule, a “child” is under 14. Under the Military Rule (presumably to maintain consistency with the punitive articles), a “child” is under 16. Thus in military practice, only possession or receipt of images of sexually explicit conduct involving at least one actual person under the age of 16 would be a qualifying offense, even though possession or receipt of those images would still constitute a criminal offense if at least one actual person depicted were under the age of 18.
The problem is placed in sharp relief in the case at bar, where all that the Military Judge sent to the members was a list of file names suggestive of pornographic content. The members had no images to view to determine whether, in fact, the files involved the use of an actual minor under the age of 16 engaged in sexually explicit conduct. The Military Judge thus failed to make a critical “threshold finding,” namely, that the proffered evidence is evidence of commission of an offense of child molestation, as there is no way of knowing whether a “child” (for purposes of the Rule) was involved.5 See United States v. Schroder, 65 M.J. 49, 52 (C.A.A.F.2007)(citing Wright, 53 M.J. at 482). The majority assumes that the “graphic file associated” with these names contained child pornography, but without the files it is impossible to tell whether the files contained graphic images of actual persons under the age of 16 engaged in sexually explicit conduct. Cf. United States v. Leedy, 65 M.J. 208, 213-15 (C.A.A.F.2007)(graphic titles might lead to a conclusion of probable cause to search, a standard lower than preponderance of the evidence; opinion acknowledges a departure from usual course of requiring pictures to establish probable cause).
The majority also places too much weight, in my opinion, on two other facets of the trial. First, the majority credits the military judge’s determination that “[ejvidence of the accused’s prurient interest regarding sexual acts involving teenage boys tends to show his propensity to engage in such acts”. Appellate Exhibit XXIX at 4. Whatever the appellant’s prurient interests may or may not be, the Rule under which these file names was admitted requires commission of an offense of child molestation, not morbid curiosity about sexually explicit activity involving children. Additionally, the majority invokes the “metadata” discussed by the expert, Record at 326-27, as revealing the actual content of the files and, therefore, the appellant’s intent in obtaining the files. As the majority notes, however, metadata are not apparent to the casual user, so unless there is some indication that the appellant is a sophisticated computer programmer (and there are indications to the contrary in the record), it is difficult to attribute to the appellant the knowledge that the original poster labeled the files as containing child pornography.
Although I see the military judge’s failure as one under Rule 414, I see it also as a failure under Rule 403, which courts have consistently held applies in cases involving application of Rule 414. E.g. Wright, 53 M.J. at 482-83 (Rule 403 provides important constitutional safeguard). The testimony of record is unclear when the appellant last opened any of the files associated with the file names found on his computer; it may have been as recently as a month before the offenses, it may have been as remotely as a year before the offenses. Furthermore, the names of the files presented to the members describe acts that are largely unrelated to the offenses charged. I place special significance on the fact that none of the file names include references to homosexual sodomy between an adult male and a juvenile male. Finally, if Rule 414 can allow evidence of a propensity to offend to be admitted, logic dictates that the propensity be to commit similar offenses; it paints with too broad a brush to declare that if one commits one discrete offense of child molestation then one will commit all types of child molestation. Cf. United States v. James, 63 M.J. 217, 219 (C.A.A.F.2006)(eharaeterizing rule as one of propensity “to commit similar acts”).
*734I return to my initial point of concurrence in the result of this case. The members had evidence of sexual contact with JP, and they also had evidence that the appellant had admitted to larceny of housing allowances. They apparently resolved issues of credibility in favor of JP and adversely to the appellant. I am satisfied of both the legal and factual sufficiency of the evidence in this case, and I am satisfied that the findings and sentence are correct in law and fact. While I believe that the military judge erred in admitting the computer evidence, I find that error to be harmless. Accordingly, I concur in the result.
. See also 18 U.S.C. § 2256 (definitions for purposes of child pornography statutes).
. See United States v. Wright, 53 M.J. at 478, 480 n. 4 (C.A.A.F.2000). The opinion's author over*732simplifies the analysis by noting that the rules are "virtually the same”.
. In support of the proposition that possession of child pornography can be a "qualifying offense,” the majority cites to United States v. Seymour, 468 F.3d 378 (6th Cir.2006). I respectfully characterize this reliance as misplaced. Seymour was a case involving prior sexual assaults against adult victims to show a propensity to assault a child; the statement about child pornography was mere obiter dicto that had no bearing on the outcome of the case, as there was no evidence at the trial level involving child pornography. Seymour, 468 F.3d at 384-85.
. Commissioning or producing a work of child pornography is acting as a principal in the rape of a child, the sodomy of a child, or other sexually explicit conduct with respect to a child. Art. 77, UCMJ, 10 U.S.C. § 877. Both production and distribution have aspects of building and maintaining a market for pornography, and they might logically be treated differently from receipt or possession (although coneededly if there were no demand, there would be no supply). Granted, distribution is an "after the fact” part of the process, and indeed neither production nor distribution is treated more severely, by statute, than receipt; possession, however, is treated less severely. Compare 18 U.S.C. § 2252A(b) with United States Sentencing Commission, Guidelines Manual, §§ 2G2.1, 2G2.2 and Ch. 5 Pt. A (Nov.2008). I recognize that the Sentencing Guidelines do not apply, either substantively or procedurally, to courts-martial, but they are instructive for assessing the "value” of a particular offense. Production of child pornography, for example, commands a range of imprisonment of 121-151 months for the lowest level offender, whereas possession with the intent to distribute commands 41-51 months and mere possession 27-33.
. The military judge also failed to distinguish between an actual child and a virtual child; see generally United States v. O'Connor, 58 M.J. 450, 453 (C.A.A.F.2003).