(dissenting):
28. I respectfully dissent. I would hold that the military judge abused his discretion in ordering additional testing because appellant had not met his burden to demonstrate the necessity for such expert assistance. While I agree that a judge should be given wide latitude in discretionary decisions, he or she must base decisions in logic as well as in the law.
29. Here, the judge did not require any threshold showing of necessity other than a showing that the retesting was relatively simple and inexpensive. There was no showing that this retesting would support or had any relevance to any specifically asserted defense. For example, as in this case, when an individual tests positive for the use of cocaine, there are numerous strategies that the defense may raise to establish necessity: (a) a break in the chain of custody; (b) mechanical or physical error at the laboratory; (e) misconduct by a scientist at the laboratory; (d) misinterpretation of testing data at the laboratory; (e) contamination of the sample; or (f) innocent ingestion. Here there was no offer of proof as to any of these or any other possible defenses. Additionally, the defense did not give the detailed notice required by RCM 701(b)(2),* Manual for Courts-Martial, United States, 1984 (1994 *306ed.), concerning the defense of innocent ingestion.
30. Thus, I would conclude that the judge abused his discretion in not requiring the defense to carry its burden of coming forward with any strategy to establish the necessity for additional testing.
FACTS
31. Appellant was randomly selected to provide urine samples for drug testing. Analysis of appellant’s sample revealed a benzoylecgonine (BE) concentration of 223 ng/ml. At the time, the Department of Defense BE cutoff level for reporting samples as positive was 150 ng/ml. Shortly after charges were preferred, appellant requested that his sample be tested again for the presence of BE and for the cocaine metabolite ecgoninemethylester (EME). The convening authority denied his request.
32. At a session under Article 39(a), Uniform Code of Military Justice, 10 USC § 839(a), defense counsel again sought additional tests of the accused’s sample for BE and EME, and added a request that the samples be tested for the presence of raw cocaine. After hearing the testimony of a defense expert and a government expert, the judge granted the defense motion and ordered all the requested tests. When notified of the convening authority’s refusal to follow his order, the judge abated the proceedings.
33. The Government appealed from the military judge’s order for further tests of the urine sample. The Court of Military Review held that the military judge abused his discretion when he ordered the requested tests based upon the determination that they were necessary under the rule governing the accused’s right to evidence. 34 MJ 1056 (1992). We denied review of this decision. After appellant’s trial results were affirmed by that court, we granted appellant’s petition for review.
DISCUSSION
34. Our cases have reviewed scientific evidence demonstrating that urinalysis testing can show the presence of various material in the urine: raw cocaine, EME, and BE. Cf. United States v. Kelly, 39 MJ 235 (CMA 1994); United States v. Robinson, 39 MJ 88 (CMA 1994); United States v. Mack, 33 MJ 251 (CMA 1991). Studies, as noted by these cases, have shown that raw cocaine dissipates quite quickly in a urine sample and thus often does not show up in a test unless the user has ingested the cocaine very recently. EME, however, will remain present in the urine for a longer period of time. EME also is only present in someone’s urine sample if that person actually ingested cocaine because EME is a natural metabolite that the body produces in reaction to cocaine. Finally, BE has an even longer presence in urine than either raw cocaine or EME. If a person ingested cocaine a few days prior to a urinalysis test, it is possible that both raw cocaine and EME will have dissipated and that the testing results would show only a presence of BE. The interesting aspect about BE is that it is not a natural reaction to cocaine from the body, that is, it can show up in urine either from ingestion or from a spiked urine sample, ie., if someone contaminated the urine sample by putting cocaine directly into the urine prior to testing.
35. Given these scientific facts, we are faced here with the question of whether an accused is entitled to fiirther urinalysis testing if the original testing only produces a positive result for BE. Furthermore, we must decide this question where the accused has not shown a scintilla of evidence of the following: a problem with the chain of custody; an opportunity to spike the urine sample (contamination); or notice of an innocent-ingestion theory required by RCM 701(b)(2). Absent such an offer of proof, I believe the military judge abused his discretion when he granted the defense motion for further testing.
36. The accused’s request should have been analyzed by the judge in terms of the cases discussing the need for expert assistance. This is exactly how this issue has been treated in the past.
37. Like the Supreme Court, see Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); Ake v. Oklahoma, 470 *307U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), we have recognized that appellant has the burden to establish the necessity for expert assistance. See United States v. Kelly and United States v. Robinson, both supra. ¶ 34.
38. In Robinson this Court stated:
The Equal Protection Clause, the Due Process Clause, the Code, and the Manual provide that servicemembers are entitled to expert assistance when necessary for an adequate defense____
39 MJ at 89 (footnote and citations omitted). We stated in United States v. Garries, 22 MJ 288, 291 (CMA 1986): “When an accused applies for the employment of an expert, he must demonstrate the necessity for the services.”
39. As the Court of Appeals for the Eleventh Circuit explained in Moore v. Kemp:
Ake and Caldwell [v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)], taken together, hold that a defendant must demonstrate something more than a mere possibility of assistance from a requested expert; due process does not require the government automatically to provide indigent defendants with expert assistance upon demand____
809 F.2d 702, 712 (footnote omitted), cert. denied, 481 U.S. 1054, 107 S.Ct. 2192, 95 L.Ed.2d 847 (1987).
40. In this case the minimal threshold showing is lacking. Indeed, the judge acknowledges this vacuum in his findings of fact where he concluded that the accused faded to show any evidence of a break in the chain of custody, evidence of contamination of the urine sample, or innocent ingestion. Appellant is not entitled to an expert when he or she offers little more than “undeveloped assertions that the requested assistance would be beneficial.” Caldwell v. Mississippi 472 U.S. at 324 n. 1, 105 S.Ct. at 2637 n. 1.
41. As to the chain of custody, the defense did not present any evidence of precautions that were not taken to prevent substitution, e.g., leaving the sample unattended, failing to have appellant observe the sealing of the sample, establishing that multiple sampies were taken on the day of appellant’s sample, and so forth.
42. In United States v. Robinson, 39 MJ at 89, this Court held that there is no abuse of discretion in failing to order a secretor test which could “detect a mismatch” of blood types when there are “ ‘no apparent’ discrepancies ‘in the collection, handling, or testing’ of appellant’s ‘urine sample.’ ” As the Government orally argued, the reason for the request for the various tests in this case is because many individuals read United States v. Mack, 33 MJ 251 (CMA 1991), as standing for the proposition that test results are inadequate to show the wrongful use of cocaine where the Government test for BE was positive and the Government test for EME was negative.
43. Without a threshold showing of a problem in the chain of custody, adulteration, contamination, or innocent ingestion, the defense has not met its burden for demonstrating the necessity for additional testing. Judge Cox underscored the importance of a focus on the chain of custody in his dissent in Mack, by stating:
The absence of EME is not the decisive factor if BE is present in the sample and the chain of custody is established---[M]y concern is the integrity of the chain of custody and not the lack of EME in the sample. If the sample was unadulterated, the absence of EME means only that the cocaine had dissipated from the system before the time of the test.
33 MJ at 256.
44. As this Court has repeatedly held, the accused must demonstrate a reasonable probability that the expert assistance would be critical to his or her defense and that the failure to secure the expert assistance would result in a fundamentally unfair trial. See Rock v. Arkansas and Ake v. Oklahoma, both supra. ¶ 37. That simply is not present here.
45. Thus, I would conclude that the military judge abused his discretion by ordering additional testing where the accused has not met his burden of demonstrating the necessity for the testing. Accordingly, I would affirm the decision of the court below.
RCM 701(b)(2) provides:
(2) Notice of certain defenses. The defense shall notify the trial counsel before the beginning of trial on the merits of its intent to offer the defense of ... innocent ingestion____ Such notice by the defense shall disclose ... in the case of an innocent ingestion defense, the place or places where, and the circumstances under which the defense claims the accused innocently ingested the substance in question, and the names and addresses of the witnesses upon whom the accused intends to rely to establish any such defenses.