(concurring in part and in the result):
134. I agree with the majority opinion on all of the issues in this case except Issues XXXI and XXXII. I concur, however, in the result on those issues. Before discussing them, however, I think some further comment on Issue I is warranted.
ISSUE I
WHETHER APPELLANT’S SENTENCE OF DEATH MUST BE SET ASIDE AND ONLY A LIFE SENTENCE AFFIRMED BECAUSE THE PANEL MEMBERS FOLLOWED IMPROPER VOTING PROCEDURES DURING THE SENTENCING DELIBERATIONS.
Appellant uses affidavits from three members of his court-martial to raise concern whether his panel disregarded the military judge’s instructions for imposing a sentence. See United States v. Bourchier, 5 USCMA 15, 26-27, 17 CMR 15, 26-27 (1954); United States v. Higdon, 2 MJ 445, 455 (ACMR 1975). I note that several state courts have recently considered the propriety of raising such an issue by means of post-trial questioning of jurors and have resolved it against defendants, even in capital cases. People v. Towns, 157 Ill.2d 90, 191 Ill.Dec. 24, 35-36, 623 N.E.2d 269, 279-80 (1993); Colvin-el v. State, 332 Md. 144, 630 A.2d 725, 745 (1993); Johnson v. State, 593 So.2d 206, 210 (Fla. 1992); People v. Morris, 53 Cal.3d 152, 279 Cal.Rptr. 720, 807 P.2d 949, 997-98 (1991); State v. Russell, 733 P.2d 162, 164 (Utah 1987). While one of those jurisdictions might approve such a practice, even it recognizes that Fed.R.Evid. 606(b) does not allow impeachment of a verdict on this basis. See People v. Perez, 4 Cal.App. 4th 893, 908 n. 13, 6 Cal.Rptr.2d 141, 149 n. 13 (4th Dist. Div. 1 1992). As noted by the majority, Mil.R.Evid. 606(b), Manual for Courts-Martial, United, States, 1984, is based on Fed.R.Evid. 606(b).
The critical question thus becomes whether these juror affidavits establish that influence of rank was employed in the deliberations to achieve imposition of the death sentence. See Mil.R.Evid. 606(b). I think not for several reasons. First, these affidavits were solicited by appellate defense counsel on the general procedures followed in deliberations. They were not instigated by any member complaining of unlawful influence of rank. Second, none of these affidavits expressly alleged unlawful influence of rank by the court-martial president. Third, despite Judge Wiss’ argument to the contrary (¶ 155), none of the affidavits reasonably implied use of rank by the president to impose sentence-deliberation rules new or different from those given by the judge. In light of the role of the president of a court-martial, Judge Wiss’ argument could be made in any case where a member says sentencing instructions were not followed in deliberations. The bottom line is that the Mil.R.Evid. 606(b) exception has not been shown to be applicable in this case.
Issue XXXI
The above issue states:
WHETHER THE CONVENING AUTHORITY WAS RACIALLY BIASED AGAINST APPELLANT AS SEEN BY HIS INSISTENCE ON HAVING RACIAL IDENTIFIERS IN THE JURY POOL SELECTION SHEETS, THE DISPROPORTIONATE PERCENTAGE OF BLACKS IN THE JURY POOL AS COMPARED TO THE POPULATION OF BLACKS AT FORT HOOD, AND THE ACTIONS TAKEN BY THE CONVENING AUTHORITY AFTER HE PICKED AN ALL WHITE JURY IN A BLACK-ON-WHITE CRIME WHERE APPELLANT IS BLACK. '
Appellant’s Claim
135. Appellant in his brief complains that the judge improperly ignored “the specter of racism” raised in this case with respect to the convening authority’s selection of soldiers to sit as members of his court-martial. Final Brief at 336. He generally references the decision of this Court in United States v. Smith, 27 MJ 242 (1988). He then asks that this case be remanded for a hearing so the convening authority can explain his purpose in using racial identifiers in the member *304selection process. He again refers to decisions of this Court in United States v. Du-Bay, 17 USCMA 147, 37 CMR 411 (1967); United States v. Moore, 28 MJ 366 (1989); and United States v. Santiago-Davila, 26 MJ 380 (1988).
Legal Nature of Appellant’s Claim
My starting point in addressing Issue XXXI is its particular wording. Unlike Issue XXXII, it does not assert that the convening authority purposefully excluded a cognizable group (blacks) from sitting on appellant’s court-martial in violation of the Fifth and Sixth Amendments to the Constitution. Instead, it asserts that certain conduct by the convening authority evidenced racism on his part and appellant’s brief further asserts that the military judge erred by not calling him into court to provide an explanation for this conduct. The asserted legal basis for this judicial error is our summary decisions on use of racial identifiers in the military justice system (e.g., United States v. Brannon, 33 MJ 179 (CMA 1991). See generally United States v. Green, 37 MJ 380 (CMA 1993)) and Supreme Court cases applying the Due Process Clause of the Fifth Amendment or the Fourteenth Amendment’s Equal Protection Clause to prohibit purposeful exclusion of minority persons from grand and petit juries. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). See generally United States v. Greene, 36 MJ 274 (CMA 1993).
Elements of Appellant’s Claim
136. Appellant cites no test from our ease law which determines when a convening authority must be called as a witness to explain his member selection process and decisions. Cf. United States v. Moore, supra (trial counsel’s use of peremptory challenges). Instead appellant heavily relies on the Supreme Court decision in Hernandez v. Texas, supra, to argue that the convening authority should have been called as a witness by the judge in this ease. He asserts that Hernandez requires the prosecution to produce evidence providing a race-neutral explanation for jury selection procedures when a prima facie case of racial discrimination has been established. He further asserts that a prima facie case is made when
first, ... the accused is in a recognizable group, second, ... there is statistical underrepresentation in the jury pool, and third, ... this discrimination is due to either intentional acts or a system which is by its very nature susceptible to potential abuse by intentional acts. See also Castaneda, 430 U.S. at 494 [97 S.Ct. at 1280]; Batson, 476 U.S. at 79 [106 S.Ct. at 1713].
Final Brief at 333.
In this case, it was well established at trial that appellant was black and blacks are “a recognizable group” within the meaning of Hernandez v. Texas and Castaneda v. Partida, both supra. See Batson v. Kentucky, supra; Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967). Accordingly, at issue, are the remaining two prongs of appellant’s Hemandez/Castaneda test for establishing a prima fade case of purposeful discrimination under the Fifth Amendment. See generally Ramseur v. Beyer, 983 F.2d 1215, 1226-27 (3d Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2433, 124 L.Ed.2d 653 (1993).
System Susceptible to Intentional Abuse
137. The first question I will address is whether the convening authority’s use of racial identifiers in the member selection process satisfied the third requirement of Castaneda v. Partida, supra. In other words, did evidence of that fact show a system susceptible to abuse by intentional acts of discrimination? As pointed out in the majority opinion (41 MJ at 285 ¶ 108), the convening authority in the military justice system “is not required to be race-ignorant: he or she is only required to be race-neutral.” United States v. Green, 37 MJ at 384. Former Chief Judge Everett in United States v. Smith, 27 MJ at 249, went further and opined for this Court that racial identifiers could be used by a convening authority to ensure that a “court-martial panel is representative of the *305military population.” See Ramseur v. Beyer, 983 F.2d at 1228-29. Thus, the mere fact that racial identifiers were used by the convening authority or his subordinates in this unique military context did not itself show intentional discrimination. United States v. Green, 37 MJ at 384 (“The standards of proof and burdens of proof are set out in RCM 905(c)(1) and (2).”). Cf. United States v. Greene, 36 MJ at 278 (footnote omitted) (“principles of Batson apply to peremptory challenges ... at courts-martial”). Nevertheless, use of racial identifiers on the jury pool selection sheets coupled with the broad discretion afforded a convening authority in selecting court-martial panels clearly constitute a system which by its very nature is susceptible to abuse by intentional acts of discrimination. See Castaneda v. Partida, 430 U.S. at 497-98, 97 S.Ct. at 1281-82; United States v. Smith, 27 MJ at 249; Ramseur v. Beyer, 983 F.2d at 1227; Johnson v. Puckett, 929 F.2d 1067, 1072 (5th Cir.), cert. denied, 502 U.S. 898, 112 S.Ct. 274, 116 L.Ed.2d 226 (1991).
Substantial Underrepresentation
138. The next question which I will address concerns the second prong of appellant’s Hernandez-Castaneda test, i.e., whether a statistical underrepresentation was shown. Appellant in this issue asserts that “the disproportionate percentage of blacks in the jury pool as compared to the population of blacks at Fort Hood” indicates that the convening authority was racially biased. Final Brief at 332. His assigned issue, albeit indirectly, suggests that the relevant jury pool is the panel actually detailed by the convening authority to sit in this case, rather than the jury pool selection sheets from which this panel was taken.1 In any event, appellant has not persuaded me that blacks were “substantially” underrepresented either in the jury pool selection sheets or in the panels actually detañed by the convening authority to sit in this case.
Statistics
As a starting point, I note that the convening authority issued four orders detailing members to appeUant’s court-martial. Court-Martial Convening Order (CMCO) 1 had 9 officers or 5 officers and 4 enlisted members detahed, one of whom was black (11.1%). CMCO #4 was subsequently issued which had 12 officer members detailed, none of whom were black (0.0%). CMCO # 7 had 7 officers and 6 enlisted members, 4 of the enlisted being black (30.8%). Finañy, CMCO # 8 detañed 12 officer members, 1 of whom was black (8.3%).
I also note that the record evidences several jury pool selection sheets used in this case. The selection sheets for CMCO # 1 reflect 62 officers (13 blacks and 4 other) and 41 enlisted (13 blacks and 1 other). AppeHate Exhibit (App. Ex.) LII at 9-15. The selection sheets for CMCO # 4, composed only of officers, included 45 officers, 4 of whom were black (8.9%). App. Ex. XLI at 18-20. The selection sheets for CMCO # 7 consisted of 282 enlisted persons and 45 officers, 327 persons total, 97 of whom were black (29.7%). App. Ex. XLVII at 3-14. Finañy the selection sheets for CMCO # 8, composed only of officers, was the same as that used for CMCO # 4 (8.9% black). Defense statistics *306show that 37,998 officers and enlisted were at Fort Hood and 11,982 were black (31.5%). They also show that 425 of 2932 officers at Fort Hood were black (14.5%). App. Ex. XLI at 63.
Analysis
139. I find appellant’s statistical argument on Issue XXXI to be unpersuasive for several reasons. Initially, however, I must note that it is couched in terms of his purported Sixth Amendment right to a jury panel drawn from a representative cross-section of the population. However, as noted by former Chief Judge Everett, “No corresponding right exists in a court-martial; and, indeed, Article 25 of the Uniform Code of Military Justice, 10 USC § 825, contemplates that a court-martial panel will not be a representative cross-section of the military population.” United States v. Santiago-Davila, 26 MJ at 389. I reject appellant’s implied invitation to declare Article 25 unconstitutional.
In any event, this Court has held that a military accused does have a Fifth Amendment “equal protection right to be tried by a [panel] from which no ‘cognizable racial group’ has been [purposefully] excluded.” 26 MJ at 389-90. See United States v. Moore, 28 MJ 366 (CMA1989); cf.: United States v. Smith, 27 MJ at 249. Moreover, appellant has cited equal protection cases (applicable to the U.S. through the Due Process Clause of the Fifth Amendment, see Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954)) at trial and on this appeal. See Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). Finally, the thrust of appellant’s argument is that purposeful discrimination, not a denial of cross-representation, was evidenced in this case. In this regard, he asserts:
The statistics show that anywhere from 15-30% of soldiers on Fort Hood were black (App. Exh. XLI), but the cross sectional pool from which the convening authority chose was only 9% black.
Final Brief at 334. Accordingly, I will construe appellant’s statistical argument as a Fifth Amendment claim that the military judge erred by not requiring the convening authority to provide a race-neutral reason for his apparent exclusion of blacks from his court-martial panel. See Castaneda v. Partida, supra.
140. To establish a prima facie case of “an equal protection violation” in a “jury selection process,” a civilian accused must show inter alia that it
(1) resulted in a substantial underrepresentation of a suspect class to which the accused belongs ...;
United States v. Warren, 16 F.3d 247, 252 (8th Cir.1994) (emphasis added), citing Castaneda v. Partida, 430 U.S. at 494, 97 S.Ct. at 1280; see Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954).2 The burden to show a “substantial” underrepresentation is on the accused. Whitus v. Georgia, 385 U.S. at 550, 87 S.Ct. at 646; United States v. Horne, 4 F.3d 579, 588 (8th Cir. 1993), cert. denied, — U.S.-, 114 S.Ct. 1121, 127 L.Ed.2d 430 (1994). Here, appellant’s own figures do not show a substantial disparity between the percentage of blacks eligible for duty on his court-martial and the percentage of blacks nominated for duty from which the convening authority detañed members to his court-martial or the percentage of blacks actually detaüed by the convening authority. Cf. Vasquez v. Hillery, 474 U.S. 254, 260, 106 S.Ct. 617, 621, 88 L.Ed.2d 598 (1986) (appeUant’s own figures and analysis show exclusion not by chance).
In developing the “relevant statistical pool” for purposes of determining whether a *307substantial underrepresentation exists, consideration of the special skills or qualifications for service is required. See generally Peightal v. Metropolitan Dade County, 26 F.3d 1545, 1553-55 (11th Cir.1994). In the present case, appellant generally compares the composition of jury pool selection sheets for his detailed panel to the percentage of black officer and enlisted soldiers at Fort Hood (9% black to 15-30% black). App. Ex. XLI at 63. Such a comparison, however, ignores the fact that appellant was tried by a panel of officers at his own request. Moreover, when he earlier requested trial by officer and enlisted members, additional jury pool selection sheets were utilized and a different detail of members made. Appellant’s failure to shape his argument based on relevant and available eligible population figures seriously undermines its appeal. United States ex rel. Barksdale v. Blackburn, 639 F.2d 1115, 1123 (5th Cir.), cert. denied, 454 U.S. 1056, 102 S.Ct. 603, 70 L.Ed.2d 593 (1981); see United States v. Douglas, 837 F.Supp. 817, 823 n. 7 (N.D.Tex.1993); Hillery v. Pulley, 563 F.Supp. 1228, 1245 (E.D. Cal.1983), aff'd, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986). See also United States v. Greene, 995 F.2d 793, 795 (8th Cir.1993).
141. In addition, review of the appropriate jury selection sheets used in the present case does not establish a prima facie case of purposeful exclusion of blacks as contended by appellant. See also United States v. Sanchez-Lopez, 879 F.2d 541, 547 (9th Cir.1989). Of the 62 officers considered for selection to CMCO # 1,13 were black (21%). Of the 103 officers and enlisted considered for selection on CMCO # 1, 26 were black (25.2%). Of the 45 officers nominated for selection to CMCO #4 by the convening authority, 4 were black or approximately 9%. Under appellant’s own figures, 15% of the total officers at Fort Hood were black. A 6% differential in terms of absolute disparity is not substantial underrepresentation as a matter of law. United States v. Horne, 4 F.3d at 588; Floyd v. Garrison, 996 F.2d 947, 950 (8th Cir.1993); United States v. Clifford, 640 F.2d 150, 155 (8th Cir.1980). See generally United States v. Irurita-Ramirez, 838 F.Supp. 1385, 1389 (C.D. Cal.1993). Cf. United States v. Douglas, 837 F.Supp. at 823. Of the 327 officers and enlisted nominated for selection on CMCO # 7, 97 were black or 30%. In view of appellant’s own figures, 31% of total officers and enlisted at Fort Hood were black. See 41 MJ at 305 ¶ 138. A 1% underrepresentation occurred in absolute disparity terms. See United States v. Pion, 25 F.3d 18, 22-24 (1st Cir.), cert. denied, — U.S. -, 115 S.Ct. 326, 130 L.Ed.2d 286 (1994). Accordingly, appellant’s argument is not supported by the jury pool selection sheets evidenced in this case. See generally Ramseur v. Beyer, 983 F.2d at 1232.
Also, a statistical review of the actual detail actions taken by the convening authority do not establish or support a prima-facie case of purposeful discrimination in the member selection process in this case. See Hillery v. Pulley, 563 F.Supp. at 1246. Appellant suggests that appointment of 4 black enlisted members in CMCO # 7 and 1 black officer in CMCO # 8 was “mere tokenism” in light of his previously detailed all-white panel of CMCO #4. He offers evidence of the belatedness of these actions to buttress his statistical showing of the convening authority’s intent to discriminate in his case. Id. at 1246-48. I find this showing inadequate to raise a prima facie case of intentional racial discrimination.
142. CMCO # 8, the final detail order in this case, had approximately 9% black officers which substantially corresponds to the 15% of black officers at Fort Hood. CMCO #7, the preceding detail order containing officers and enlisted, had approximately 30% blacks which corresponds to the 31% blacks at Fort Hood. No prima facie case is shown by an absolute disparity of 6% or 1%. See Floyd v. Garrison, supra.
Admittedly, CMCO #4, the second detail order in this case, had 0% black officers and a 15% disparity has borderline significance to show intentional discrimination.3 Ramseur *308v. Beyer, 983 F.2d at 1232. However, any implication of intentional discrimination resulting from statistical underrepresentation must be evaluated in light of circumstances of a particular ease. Id. at 1233. Here, the final panels actually detailed to this case, CMCO # 7 and CMCO # 8, had no substantial underrepresentation of black officers or officers and enlisted. Id. at 1228. Moreover, the very evidence introduced by the defense to show underrepresentation provided a race-neutral reason for the convening authority's decision on CMCO #4 (to avoid having officers exposed to pretrial publicity). Id. at 1229. Finally, the record shows that the panels in CMCO #7 and #8 were detailed because of appellant’s request for enlisted members (# 7) and his later request to return to an all officer court panel after some officers previously detailed became unavailable (# 8). See Ramseur v. Beyer, supra at 1228. Cf. Hillery v. Pulley, supra at 1246-48.
The bottom line on this issue is that appellant did not meet his burden of establishing a prima facie case that the convening authority purposefully excluded blacks when he selected the panel members for his case. See cf. Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967). Thus, the military judge did not err when he failed to call the convening authority to articulate a race neutral reason for his selection decisions. Cf. Batson v. Kentucky, supra; United States v. Moore, 28 MJ at 369. Here, we can presume that the military judge knew that racial identifiers have been approved by our Court when used to insure a cross-representative panel for a military accused. See United States v. Smith, 27 MJ at 249. Moreover, appellant’s statistical arguments are misleading on their face or fail on closer examination. Finally, it was conceded at trial that there was no proof that the convening authority had a history of purposeful discrimination in his court selection actions. (R. 258.) See Ramseur v. Beyer, supra at 1233. Cf. Hillery v. Pulley, supra. In this context, the military judge was not obliged by constitutional or military law to call the convening authority to explain his selection process and decisions.
ISSUE XXXII
WHETHER APPELLANT WAS DENIED HIS RIGHTS UNDER THE FIFTH AND SIXTH AMENDMENTS BECAUSE THE PANEL MEMBER SELECTION POOL DID NOT INCLUDE ANY FEMALES.
143. On appeal before this Court, appellant argues that the convening authority in this ease deliberately selected a panel without woman in violation of the Fifth and Sixth Amendments. He asserts that 11% of the *309soldier population at Fort Hood were women; nevertheless, he notes that none of these women were in the selection pool sheets of officers from Fort Hood; no women were in the supplemental selection pool sheets from Fort Sill; only one woman was in the selection pool sheets for officers and enlisted from Fort Hood (App. Ex. XLVII); and no women were on his detailed panel (CMCO # 8). He further asserts that stacking appellant’s court-martial panel with males to achieve a particular result violates this Court’s holding 'in United States v. McClain, 22 MJ 124 (1986).
Turning first to appellant’s Sixth Amendment argument, I find it is unsupported as a matter of law. Appellant implies that Article 25(d) is unconstitutional and that a soldier is entitled to a representative cross-section of the population in the court-martial panel which tried him. This Court resolved this issue against appellant in United States v. Smith, 27 MJ at 248; and United States v. Santiago-Davila, 26 MJ at 389. See also United States v. Moore, 28 MJ at 367-68 n. 3. Accordingly, the mere fact that appellant’s court-martial panel had no women on it did not establish a Sixth Amendment violation.
Turning to appellant’s Fifth Amendment argument, I note that its attractiveness has increased since the recent decision of the Supreme Court in J.E.B. v. Alabama ex rel T.B., — U.S. -, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). See also Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Moreover, here, the percentage of women in the officer population of Fort Hood and Fort Sill was approximately 11% as maintained by appellant. Also, the number of women detailed was 0, suggesting an absolute disparity of eleven. At trial, however, appellant mentioned the absence of women from CMCO # 4 almost as an afterthought. (R. 243, 249, 259). He then questioned the presence of a woman on CMCO # 7 (R. 260) and failed to make any objection whatsoever to CMCO # 8 on this basis. (R. 333-34.) See Ramseur v. Beyer, 983 F.2d at 1229 n. 12. In this context, I would apply a plain error analysis to this question and resolve it against appellant.4 Id. at 1232 n. 18. See generally United States v. Chandler, 12 F.3d 1427, 1431-32 (7th Cir.1994); Dobbs v. Kemp, 809 F.2d 750 (11th Cir.1987).
144. My final concern is appellant’s argument based on United States v. McClain, 22 MJ 124. I agree with Judge Gierke that there is no evidence of court-packing in this case.
Conclusion
Outside of the above reservations, I would affirm this case. Appellant received a fair trial and has been properly convicted. Under the Constitution and present laws of this land, I find that the death penalty has been properly adjudged and see no reason why *310appellant should not be executed for the crimes he committed.
I only add one further thought: my continuing concern that servicemembers be treated fairly in capital eases. As I stated in my concurring opinion in United States v. Curtis, supra:
It is my personal view, however, that, in peacetime, a servicemember in a capital ease should be tried by a 12-member court-martial. The value of a soldier’s life is surely equal to the value of the life of his fellow citizens. Cf. Williams v. Florida, 399 U.S. 78, 103, 90 S.Ct. 1893, 1907, 26 L.Ed.2d 446 (1970). Nevertheless, neither the Constitution itself, nor Congress in legislation, nor the President by regulation has mandated a 12-member panel in a military capital case. See generally Van Loan, The Jury, The Court-Martial, and The Constitution, 57 Cornell L.Rev. 363, 384 n. 118 (1972). Moreover, it is the duty of this Court to apply the law of the land, not to legislate by judicial ñat, and therefore, it is beyond our power to mandate such a procedure. Finally, appellant himself, by use of his challenges, reduced in part the number of court members detailed to this case from 15 to 9. Moreover, he did not particularly object to trial by 9 members at this court-martial or request the detail of additional members. I could not find reversible error in these circumstances even if appellant was somehow entitled to a 12-member panel.
32 MJ at 271.
In the present case twelve members were detailed to sit in this case. Three members were challenged by the defense and one member was challenged by the prosecution. Appellant did not particularly object to trial by eight members or request detail of additional members. Thus, appellant was tried by that court-martial fairly and in accordance with the law. Its verdict must stand unless set aside by appropriate executive authority or by mandate of further judicial review.
. Appellant in his brief (at 334) suggests that the pool of members from which the all-white officer panel was designated by the convening authority was the 45 officers listed on the panel selection sheets submitted by the staff judge advocate to the convening authority. (R. 243) This so-called jury pool, as identified by appellant, has neither a statutory nor a regulatory origin. Pursuant to Article 25(a), Uniform Code of Military Justice, 10 USC § 825(a), all officers, commissioned and warrant, were eligible to serve on appellant’s court-martial. Although the staff judge advocate submitted a roster of 45 officers, the decision paper to the convening authority expressly informed the convening authority that he was not limited to the list and could designate any officer under his command in accordance with Article 25. As such, the "pool” of potential members could be the entire officer populations on Forts Hood and Sill. The officers detailed by the convening authority pursuant to written court-martial convening orders, RCM 504(d), Manual for Courts-Martial, United States, 1984, are equivalent to the civilian venire from which peremptory challenges and challenges for cause are made. A more appropriate statistical analysis would compare the percentage of black officers in the entire officer populations with the percentage of black officers detailed to serve on the court-martial.
. A question arises concerning the second prong of the Hernandez/Castaneda test after the decision of the Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Castaneda test requires a degree of under-representation "over a significant period of time," 430 U.S. 482, 494, 97 S.Ct. 1272, 1279, 1280, 51 L.Ed.2d 498 (1977), but Batson permits a showing of underrepresentation in defendant’s case alone, 476 U.S. at 95-96, 106 S.Ct. at 1722-23. At least two circuits have expressly held that the Castaneda test has also been so modified. Ramseur v. Beyer, 983 F.2d 1215, 1226 (3d Cir. 1992); Jefferson v. Morgan, 962 F.2d 1185 (6th Cir.), cert. denied, -U.S. -, 113 S.Ct. 297, 121 L.Ed.2d 221 (1992); cf. Dobbs v. Kemp, 809 F.2d 750, 751 (11th Cir.), cert. denied, 481 U.S. 1059, 107 S.Ct. 2203, 95 L.Ed.2d 858 (1987).
. Appellant's arguments at trial and on appeal are based on "absolute disparity" analysis (the difference between the percentage of blacks detailed to his court-martial and the percentage of *308blacks in the Fort Hood population). See United States v. Pion, 25 F.3d 18, 23 n. 5 (1st Cir.), cert. denied, — U.S.-, 115 S.Ct. 326, 130 L.Ed.2d 286 (1994); United States v. Irurita-Ramirez, 838 F.Supp 1385, 1389 (C.D.Cal.1993). However, the gross statistics presented by appellant at trial were rudimentary at best. Moreover, appellant did not present expert testimony explaining the statistics. See Hillery v. Pulley, 563 F.Supp. 1228, 1241 (E.D.Cal 1983), aff'd, 733 F.2d 644 (9th Cir. 1984), aff'd, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986). Even if this Court were to apply the statistical probability analysis used in Castaneda v. Partida, 430 U.S. 482, 496-97 n. 17, 97 S.Ct. 1272, 1281 n. 17, 51 L.Ed.2d 498 (1977), appellant has not demonstrated substantial underrepresentation.
In Castaneda, the Supreme Court applied a statistical probability model to determine whether the underrepresentation was random. Essentially, “if the difference between the expected value and the observed number is greater than two or three standard deviations, then the hypothesis that the jury drawing was random would be suspect to a social scientist.” Id. at 497, 97 S.Ct. at 1282. In the case sub judice, applying the simple methodology used in Castaneda, the standard deviation is 1.2%. This figure is derived as follows; the square root of the product of the total number of officers in the sample (here 12) times the probability of selecting a black officer [(425 + 192)/(2932 + 1613) App. Ex. XLI at 63-64] (0.136) times the probability of selecting a non-black officer (0.864). See 430 U.S. at 497 n. 17, 97 S.Ct. at 1281 n. 17. The expected value of black officers among the 12 officers selected was approximately 2; the observed number was 1. The difference between the expected value of black officers designated to appellant’s panel and the observed number of black officer designated to the panel was 1. This difference is less than two or three standard deviations and, therefore, is considered a statistically-random result. Id.
. Appellant’s argument on appeal is based on absolute disparity analysis (the difference between the percentage of women detailed to his court-martial and the percentage of women in the Fort Hood and Sill populations). See United States v. Pion, 25 F.3d at 23 n. 5; United States v. Irurita-Ramirez, 838 F.Supp. at 1389. However, the statistics presented by appellant at trial were rudimentary, at best. Moreover, appellant did not present expert testimony explaining the statistics. See Hillery v. Pulley, 563 F.Supp. at 1241. If this Court were to apply the statistical probability analysis used in Castaneda v. Partida, 430 U.S. at 496-97 n. 17, 97 S.Ct. at 1281 n. 17, appellant has not demonstrated substantial underrepresentation.
In Castaneda, the Supreme Court applied a statistical probability model to determine whether the underrepresentation was random. Essentially, "if the difference between the expected value and the observed number is greater than two or three standard deviations, then the hypothesis that the jury drawing was random would be suspect to a social scientist." Id. at 497, 97 S.Ct. at 1282. In the case sub judice, applying the simple methodology used in Castaneda, the standard deviation is 1.1%. This figure is derived as follows: the square root of the product of the total number of officers in the sample (here 12) times the probability of selecting a female officer [312 + 169)/(2932 + 1612) App. Ex. XLI at 63-64] (0.106) times the probability of selecting a male officer (0.894). The expected value of female officers among the 12 officers selected was approximately 1; the observed number was 0. The difference between the expected value of female officers designated to appellant’s panel and the observed number of female officer designated to the panel was 1. This difference is less than two or three standard deviations and, therefore, is considered a statistically-random result. Id.