Does Soldier Have Child Porn Or 'Innocent Pictures' of Niece?

Jan. 19, 2010— -- The U.S. military and the family of Spec. Billy Miller agree that there are pictures of children on the National Guardsman's laptop.

Miller's family contends the images are "innocent pictures" of his 4-year-old niece, sent to the Illinois soldier serving in Afghanistan from his mother to cheer him up. The military says there are additional child photos, pornographic images worthy of an investigation and potential court martial.

Miller has been charged with possession of pornography and child pornography, and months after his Illinois National Guard battalion returned home, he remains in Afghanistan awaiting his fate.

The military says he must stay there until the investigation concludes, but his family contends the Army is trying to cover up its own blunders by claiming the 22-year-old soldier was in possession of child porn.

In July Miller's mother Terri Miller sent the soldier pictures of his niece, a 4-year-old cancer survivor, posing in a bathing suit in a swimming pool, on a bed and on the hood of a pickup truck.

"I took those pictures and I sent them to him. That little girl is his life. She came to nana and pop's house for vacation and her birthday," said Terri Miller. "He's homesick and I sent them. They were just innocent pictures."

She's convinced it is her fault that her son continues to remain in Afghanistan five months after she sent the pictures.

"It just eats me up that I'm to blame," she said.

But the Army says there is more to it than just the pictures of Miller's niece. Army investigators say they found adult pornography and other child images, which they believe qualify as pornographic, according to an Army spokesman stationed in Afghanistan.

"We can confirm that the photos of his niece in a bathing suit are not the photos related to the article 134 violation for child pornography nor are they related to the article 92 violation," Master Sgt. Thomas Clementson told ABC News.com via e-mail.

Article 134 of the Uniform Code of Military Justice prohibits the possession of child pornography. Article 92 prohibits the possession of adult pornography.

"Now that he has been charged, his case is being investigated. It will then go to an Article 32, which is similar to a civilian grand jury. An officer has been appointed to review the evidence and determine if there are grounds for a trial by court martial, or if the case should be tried at all," said Clementson in a phone call from Bagram Air Force Base in Afghanistan.

A charge of possession of child pornography would have to meet the federal definition of "any visual depiction of a minor, or what appears to be a minor, engaging in sexually explicit conduct," according to the Army.

The military said Miller had been assigned an attorney in Afghanistan. His parents confirmed that he had once briefly met with counsel.

Pornography Charges for Army Specialist

If Miller's case goes to trial and he is found guilty, he could face up to 10 years in prison for possession of child pornography. A conviction on possession of adult pornography carries a sentence of up to two years.

Miller, a truck driver whose 33rd Infantry Brigade returned to the U.S. without him in September, was assigned to another brigade and continues to work at the military's headquarters at Bagram.

Though the military said the investigation was ongoing, Miller was not formally charged until earlier this month. He has not been confined to a brig and still has access to his personal computer pending the conclusion of an investigation, according to the military and his family.

"He was put on active duty pending the conclusion of the investigation and any legal proceedings," said Clementson. "Under the general court martial rules he can be pushed back to the U.S. or tried in Afghanistan. He's been assigned to headquarters in Bagram doing day-to-day tasks and operations. He has not had any privileges suspended."

In a telephone interview with ABC News affiliate WQAD, in Moline, Ill., before the military revealed the allegations of other photos. Miller said from Afghanistan: "That's the thing; nobody can tell me when I'm coming home. Nobody can give me a straight answer over here."

Through his parents, Miller said he would not talk to ABCNews.com "until back on U.S. soil."

Miller's family reached out to the media and elected officials in recent weeks in the belief that the soldier's case had fallen through the cracks after his unit went home and he was being overzealously investigated for the pictures of his niece.

When told by ABCNews.com that the military said it was investigating Miller not for the images of his niece in the bathing suit, but for other allegedly pornographic images, his father Rodney Miller said it was an attempt to cover previous mistakes.

"I think the Army is just trying to cover their ass," said Rodney Miller. "They left him over there, never charged him and haven't read him his rights. Let us have the hard drive and let a forensic expert conduct an investigation."

"How do they know for sure Billy downloaded those pictures and it wasn't someone else using the computer?" he asked. "Only since we've gone to the media has the Army come out with this stuff. They dropped the ball for five-and-half months and now they come out with this."

'Charge the Guy or Bring Him Home'

Miller's older brother Spc. Gary Miller, the girl's father and an active duty Army scout stationed in Kentucky, said he was questioned by the Army's Criminal Investigation Division in August about his brother and the pictures.

Gary Miller told ABCNews.com, prior to the new allegations that other images were on the computer, that he knew the photos had been sent to his brother and never had reason to believe Billy Miller had an inappropriate interest in children.

"Investigators came by and told my wife in August that [the] investigation was over and he was cleared. We thought he was coming home in September, but then he didn't. His own unit thought he was cleared to come home [as well]," said Gary Miller, 28.

"If my brother is charged, why does he still have Internet access? Why does he still have access to his personal laptop?" asked Gary Miller, who said he did not know every image that was on his brother's computer, but that investigators confined all of their questions to the images of his daughter.

Gary Miller said his brother was a loving uncle who was with the little girl when she was diagnosed with neuroblastoma, a brain cancer, at 6 months old. Gary, her father, was in boot camp at the time.

"He is being held in Afghanistan wrongfully," Gary said. "Charge the guy or bring him home."

For now, Miller and his family await the findings of the investigation. His fiancee of three years says they have had to put any plans for a wedding on hold until they know the outcome of the investigation.