(dissenting):
I disagree with my colleagues that the urinalysis which precipitated the charges against appellant was a valid inspection within the meaning of Mil.R.Evid. 313. In my opinion, the evidence obtained from the urinalysis should have been suppressed. Accordingly, I would set aside the findings and sentence and order the charges to be dismissed.
The right of a commander to require military members to submit urine samples for drug testing as part of a valid military inspection without any showing of probable cause or individualized suspicion is well established. United States v. Bickel, 30 M.J. 277, 285 (C.M.A.1990). According to Mil. R.Evid. 313(b), an “inspection” is an examination of the whole or part of a unit, organization, installation, vessel, aircraft or vehicle, conducted as an incident of command, the primary purpose of which is to determine and ensure the security, military fitness, or good order and discipline of the unit, organization, installation, vessel, aircraft or vehicle. However, the rule provides that an examination made for the primary purpose of obtaining evidence for use in a trial by court-martial or in other disciplinary proceedings is not an inspection within the meaning of the rule.
The facts of this case convince me that the purpose of this urinalysis was not to determine or ensure the security, military fitness, *758or good order and discipline of the members who were required to provide urine samples but rather to obtain evidence which might link individuals to the planting of marijuana in Major A’s briefcase. There can be no doubt that the urinalysis was ordered as a direct result of the investigation into that event.
The mere fact that someone was suspected of attempting to implicate Captain A did not preclude the commander from conducting a legitimate inspection for the purpose of determining if members of his command were using contraband. However, Mil.R.Evid. 313(b) places a burden on the government to prove by clear and convincing evidence that there was an inspection within the meaning of the rule when, as in this instance, the examination was to locate weapons or contraband and the examination, which was not previously scheduled, was directed immediately following a report of a specific offense in the unit, organization, installation, vessel, aircraft or vehicle. While I am reluctant to conclude, as appellant’s counsel asserts, that the purported inspection was a subterfuge for a warrantless search, I find the government has failed to meet its burden of showing by clear and convincing evidence that the results of the urinalysis were admissible as fruits of a valid inspection.
Having reviewed the trial judge’s findings of fact, I find the facts which were used to conclude that this urinalysis was an inspection fall far short of the clear and convincing standard. I cannot read Mil.R.Evid. 313(b) as a license for a commander to use urinalysis testing whenever he may like in support of a criminal investigation. United States v. Campbell, 41 M.J. 177 (C.M.A.1994). Here, the persons chosen to participate in the search were those who worked in the same budding as Major A. The stated purpose was “to clear the record” regarding the “finger pointing” in connection with the drug incident involving Major A. Of the 79 persons chosen to participate in the urinalysis, 20 were “no shows” for the urinalysis. None of the “no shows” were ever tested. In my view, these facts are not consistent with a valid inspection but rather consistent with a desire to obtain evidence on or clear a group of possible suspects.
I believe the result I would reach is consistent with this Court’s decision in United States v. Parker, 27 M.J. 522 (A.F.C.M.R.1988). The parallels between that case and this one are startling. In Parker, the members of the carpentry shop were scheduled for urinalysis testing after a marijuana butt was found in the parking lot used by personnel who worked in the shop. The commander was concerned about rumors and jokes about chronic drug use by those assigned to that shop. Only 12 of the 20 assigned members were present and scheduled for testing. Although Parker, who tested positive, was never a suspect, our Court held there was no valid inspection because the commander excused some members of the selected unit from having to provide urine samples.
I cannot rationalize a different result in this case from the one our Court reached in Parker. The following observations by Senior Judge Lewis in Parker are no less applicable today and are worth repeating:
We interpret Mil.R.Evid. 313(b) as we find it, not as we might like it to be. There is, admittedly, a built in anomaly in the rule. Roughly stated, urinalysis evidence derived from a unit inspection becomes admissible in courts-martial only when the inspection was not directed for the primary purpose of obtaining such evidence. However, the lesson to be drawn from this case is not that commanders should endeavor to testify more circumspectly. If we were to suggest this, we would be doing a major disservice to all who read our words. This case illustrates that the rule contains a triggering mechanism which imposes a burden of proof on the government that can be difficult to overcome. Inspections must be conducted in such a manner as to avoid this pitfall if evidence is to be preserved for possible courts-martial Finally, and for the purpose of any further appellate review, we find by the clear and convincing weight of the evidence that the appellant was neither specifically suspected of drug abuse nor was he viewed by command authorities as a target of the examination. This was a point that the *759government stressed at the trial level, but a matter we do not feel is dispositive of the issue in this case. As we interpret Mil. R.Evid. 313(b), a commander need not go so far as to single out specifically identified suspects for testing to raise an inference that an examination for evidence rather than an inspection has been directed.
Parker at 528.
Additionally, I dissent from the majority’s conclusion that the military trial judge did not err by granting a prosecution motion to exclude any evidence of a previous attempt of an unknown person to plant drugs on a person who worked in the same building as the appellant. At trial, appellant relied on the defense of an unknowing ingestion. The government was notified of his intent to raise the defense. Appellant sought to call the OSI agent who was investigating the incident involving Major A in support of his unknowing ingestion defense. The military trial judge ruled that the testimony of the OSI agent, even if viewed as minimally relevant, might confiase the issue before the Court and waste its time and, therefore, should be excluded.
Under the facts of this case, I believe the exclusion of the OSI agent as a defense witness was error. I conclude the testimony of the OSI agent would have been relevant to appellant’s defense. The weight given to the testimony was a matter for the members to decide. I disagree that the testimony would have been confusing or a needless waste of time. An accused who relies upon unknowing ingestion as a defense to evidence of drug use derived from urinalysis testing has a very, very difficult task of convincing the factfinders that the defense has merit. Every accused is entitled to his day in court and should in the exercise of his due process right be afforded great latitude in presenting a defense. Basic fairness suggests to me that this appellant should have been allowed to present to the jury the information concerning the recent planting of marijuana in his building and to make the argument that the same individual may somehow have been responsible for his unknowing ingestion of the drug he was charged with using.