(dissenting):
54. Coherence is the essence of insuring a rational judicial process. Without any explanation, the majority rejects the findings of fact by the judge and the court below, and casts aside the standard of review enunciated and followed by this Court for years. See, e.g., United States v. Burris, 21 MJ 140 (CMA 1985). In fact, the majority completely disregards the evidence surrounding the search of appellant’s quarters as well as the events leading up to that search as if that evidence is unrelated to the petition for new trial.
55. It defies reason why the majority, in 27 typed pages with a lengthy appendix, does not address why the judge’s or Court of Military *277Review’s factual findings are clearly erroneous; does not address the question of the search even though the issue would clearly be relevant; does not explain that the low nanogram level would not be unusual based on the fact that appellant, a nurse-recruiter, had used a medical solution in a rubber bag with a tube and stopper to flush her bladder (¶ 63); does not mention how appellant delayed the search of her house to preclude finding any residue; and does not reveal or consider that, prior to trial, appellant asked her husband to recant his statements.
FACTS
56. Appellant met Captain Jan Sztuka in April 1988. She was a nurse-recruiter in Arkansas while Capt Sztuka, a graduate of the Air Force Academy, was a pilot at Little Rock Air Force Base, Arkansas. They continued to date each other for approximately 2 years. He lived at 9 Del Tara Drive, and she lived 3 houses away at 15 Del Tara Drive. After they were married on October 12,1990, Capt Sztuka was deployed to the Middle East in support of Desert Shield/Desert Storm operations. He returned for approximately 5 weeks during December 1990 and January 1991. He then left to participate in the air war (January 16 through February 23, 1991) and the ground war (February 23-27, 1991), and returned to a welcome-home party thrown by appellant on March 5, 1991. On March 8, 1991, as well as on other evenings upon his return home, he stayed at appellant’s residence. In fact, he kept his uniform, boots, and many personal items at her house. But he did not have a key to her premises after his return on March 5, 1991.
57. On Saturday, March 9, 1991, Capt Sztuka says he smelled marijuana on the accused’s person and observed a small marijuana baggy in the bathroom. He confronted appellant. She admitted drug abuse but said she would immediately stop using marijuana and flushed the marijuana down the toilet. However, he previously observed marijuana in a ceramic frog and Band Aid box in the bathroom.
58. Because he was upset, according to Capt Sztuka, and wanted his wife to stop using drugs, he approached Capt John G. Long, Chief of the Mental Health Clinic at the Little Rock AFB Hospital. Capt Long, however, referred Capt Sztuka to the local Air Force Office of Special Investigations (OSI). Capt Long in turn contacted the local OSI office and briefed them on the matter.
59. At approximately 1730 hours on March 9, 1991, OSI Special Agent Patrick A. Ahlgrimm called Capt Sztuka. Capt Sztuka agreed to discuss the case at his residence. He told Agent Ahlgrimm about the smell of marijuana on appellant’s person, that he confronted her about her marijuana use, and that this resulted in her telling him to get out of the house. He also told the agent that he had informed his wife that he had notified the commander. He reported that appellant became angry at this and started to cry.
60. Following this interview, both Agent Ahlgrimm and Capt Sztuka traveled to the local OSI office where Capt Sztuka made a written statement under oath. The agent attempted to get advice on a search authorization from the staff judge advocate (SJA), Lieutenant Colonel (LtCol) Robert E. Kaszczuk, but was unable to locate him. He then contacted a local judge and asked about obtaining a search warrant. However, Agent Ahlgrimm was worried about a 48-hour delay over the weekend to obtain a warrant even though the judge concluded that, based on the information provided, there was probable cause. Since Capt Sztuka consented to a search of both residences, no search warrant was obtained. He also agreed to give a urine sample.
61. However, prior to going to the residences, Agent Ahlgrimm contacted LtCol Donald J. Green, the Acting Base Commander, to obtain his authorization to obtain a urine sample from appellant. After discussing the information with the SJA, LtCol Green determined there was probable cause for an authorization to compel a urine sample.
62. At approximately 2145 hours, Agents Ahlgrimm, Freeman, and Franklin, as well as Detective Kenny Boyd of the Jacksonville Police Department, met outside 15 Del Tara Drive. Detective Boyd knocked on the door, *278identified himself, and announced that they were authorized to search. Appellant came to the door wearing a blue robe and night gown, but said she needed a few more minutes. After waiting approximately 2 to 3 minutes, appellant then opened the door.
63. A search of the premises commenced and lasted approximately 1 hour but did not reveal the ceramic frog or Band Aid box. However, during the search, they found a bag containing a liquid with a rubber tube and a stopper. While the agents were searching the house, Agent Franklin stayed with appellant and noticed that she had a 5-inch diameter wet spot on her pants. Franklin asked for an explanation and appellant gave two: first, that the bathtub was stopped up and apparently overflowed, and her pants got wet around her crotch area; or second, that she had her period. The agent then directed appellant to submit to a urine sample. She resisted giving a sample at night because her young child was asleep. After appellant refused to go to the hospital, the agents called LtCol Green who talked with appellant on the telephone. He ordered her to give a urine sample that evening.
64. Eventually they went to the hospital. At the hospital Agent Franklin and Airman First Class Kenyon Vandervelde noticed that appellant had in her hand a brown plastic top to a ball point pen cap which she held near her groin area. The agents removed the pen cap. After a short wait, appellant gave a urine sample that tested positive for marijuana use. Agent Franklin, who was personally observing the giving of the urine sample, noticed that appellant did not remove a sanitary napkin or tampon, thus undermining one of appellant’s explanations for the wet spot. The nanogram level was just about at the cutoff level. The nanogram level in Department of Defense Directives for a positive urinalysis is artificially high to ensure there are no false positives. United States v. Arguello, 29 MJ 198, 204 (CMA 1989). Additionally, appellant’s nanogram level would have been lowered due to her flushing of her bladder which dilutes the urine in the bladder.
65. Prior to trial on May 28, 1991, appellant called her husband to work out a defense for the upcoming trial. During this conversation, which was taped by appellant, they sought to devise a defense. However, the transcribed tape recording could be read, as the Court of Military Review opined, as appellant’s trying to obstruct justice and suborn perjury. It is notable that, although the taped conversation was made by the defense, the tape itself does not appear in the record, and only a partial transcription was made by the defense.
66. At appellant’s request a post-trial hearing was held as to whether the appellant’s motion for a new trial should be granted. The military judge found, in part, as follows:
[ (5) ] [Evaluating ... testimony ... is a task which is most difficult in this case. We are faced with a trial more than two years ago. We are faced with a case which has developed an appellate life of its own. Sadly, it has taken on some aspects of a judicial afternoon soap opera.
[ (6) ] I cannot find sufficient credibility from the testimony of Rebecca Guest to justify its elevation to the level of newly discovered evidence which if considered by a court-martial in the light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused. I cannot find Rebecca Guest to be a credible witness. Interests ing but not credible is, in my opinion, a fair description of that witness’ testimony. Only two other items of evidence tend to possibly lend credibility to her testimony—
(1) the testimony of Joy S. Lieblong and
(2) the clandestine pre-trial tape recording of a conversation between the accused and Capt Jan Sztuka.
[ (7) ] In my opinion, the taped conversation can be subject to several interpretations inconsistent with corroborating the testimony of Guest, just as easily as it can be used to lend credibility to that post-trial testimony. Additionally, although the testimony of Joy S. Lieblong does tend to lend some credibility to Rebecca Guest as a witness, that testimony also relates back to Rebecca Guest herself as a source. I *279find that it does not lend sufficient credibility to her testimony in view of the dollops of other evidence tending to adversely reflect on her credibility.
[ (8) ] Rebecca Guest’s testimony also must be viewed in the context of Capt Jan Sztuka’s clear testimony to the contrary. Although the career of this Air Force Officer since the trial has not struck a note tending to support his credibility, I can find no basis to reject that testimony out of hand----
(Emphasis added.)
67. The Court of Military Review likewise found that Lt Guest and appellant lacked credibility. Aug. 11 unpub. op. at 7. They recognized both were spurned lovers. Agent Evans and Agent Ahlgrimm testified that “Lt Guest “was excited’ at the prospect of Capt Jan Sztuka being punished.” During an initial interview with Lt Guest, she “said nothing about Capt Sztuka” putting marijuana in appellant’s food. Id at 3. It was only later that she made that assertion. The agents also noted that “Lt Guest grew agitated and angry as she spoke, especially when relating the fact that Capt Sztuka was dating another woman.” In addition to her motive to fabricate being clearly established by the record, the OSI investigators were emphatic in their testimony that she never mentioned anything about Capt Sztuka’s admitting that he had put marijuana in appellant’s food as Lt Guest claimed. Id at 4. The assertion that they testified because they had been “hoodwinked by Capt Sztuka” was “refuted fully by their actions----” Id. at 7.
68. In addition to these findings, the Court of Military Review found as follows:
We find the military judge’s findings and conclusions fully supported by the record. We, as did the military judge, simply find Lt Guest unworthy of belief____ During his questioning of the agents, petitioner’s counsel suggested they were hostile to Lt Guest because her claim suggested dereliction on their part in being “hoodwinked by Capt Sztuka.” This assertion is refuted fully by their actions on the information she did provide.
When Lt Guest alleged Capt Sztuka held himself out as a “gun for hire,” the investigators promptly targeted her against him and attempted to validate the allegation, including listening on telephone extensions, with Lt Guest’s consent, while she engaged Capt Sztuka in conversation — all to no avail. In fact, SA Evans testified that during these conversations, Capt Sztuka did not desire to talk with Lt Guest. SA Evans stated they took a written statement from her to close the file, and she made no mention of petitioner’s case therein. There is nothing in the record to indicate the investigators would have been any less interested in the marijuana allegation than they were in the “gun for hire.” In fact, human experience would indicate just the opposite reaction: if Capt Sztuka had deceived them, that would be maximum incentive to develop a solid case against him.
With regards to the “transcript” of the taped conversation between petitioner and Capt Sztuka prior to her trial, to say it is subject to interpretation is to place it in its most favorable light. This conversation was alluded to during petitioner’s testimony at her trial, but the “transcript,” although it existed, was not offered as evidence. During her cross-examination, petitioner claimed she entreated Capt Sztuka to admit he caused her positive urinalysis, but he twisted it to make her appear she suggested he perjure himself. She denied the reason for the abrupt termination of the conversation was his discovery she was recording it surreptitiously.
Our impression of the “transcript” is that it raised the spectre of two people seriously discussing various ways of how false testimony might be presented to a court-martial. We discern little evidence of petitioner attempting to persuade Capt Sztuka to come forth with the truth and correct an injustice. Further, there is no clear claim or accusation in petitioner’s January 1992 letter to Lt Guest that Capt Sztuka spiked her food. Petitioner expressed her bitterness towards Capt Sztuka for being the source of her troubles, but she did not attribute his having spiked her *280food as the reason. His simply reporting her drug involvement, as he did, is just as likely a source for her bitterness.
Finally, we find Capt Sztuka’s testimony quite plausible. Confirming conversations occurred regarding petitioner’s claim that he spiked her food is a vastly different matter than admitting it. The same rationale applies to the “gun for hire.” He testified that, during their cohabitation together, he shared with Lt Guest that while on a hunting trip in Arkansas, another member of the party alluded to having people eliminated for $500.00. Capt Sztuka testified he related the story to Lt Guest as another example of Arkansas eccentricities. He never claimed the personal ability to make such arrangements. He testified the taped conversation with petitioner prior to her trial occurred as a result of her asking him to either say he put marijuana in her food or that someone else did.
Aug. 11 unpub. op. at 7-8.
DISCUSSION
69. This is the first case of which I am aware that this Court has not applied the rule of accepting the findings of fact below unless they are clearly erroneous. See, e.g., United States v. Burris, 21 MJ 140 (CMA 1985). In effect, the majority has chosen to retell this story using illusive factfinding authority. See Art. 67(c), Uniform Code of Military Justice, 10 USC § 867(c) (1989).
70. Although the majority analyzes the petition for new trial under a legal abuse-of-discretion standard, it fails to enunciate where there was any abuse. “Whether one pigeonholes our concern into the first or third ... possibilities, or indeed whether our view is a hybrid of sorts, our conclusion is inevitable.” ¶39. This conclusion appears to be a failure to follow RCM 1210(f)(2), Manual for Courts-Martial, United States, 1984, but then I am not surprised at the inevitability of the majority’s conclusion based on their rendition of the “facts.”
71. There are two issues in this case. The first is the question of the search of appellant’s quarters, and the second is the petition for new trial. While the majority would ignore the search issue, these are interrelated. The evidence surrounding the search undercuts appellant’s credibility concerning allegations that the spiteful husband spiked her gumbo.
72. Additionally, a second matter tends to totally undercut appellant’s defense. There are a number of well-known studies which have shown that the psychoactive ingredient in marijuana is not free standing. Unlike such substances as cocaine or heroin, leaf maryuana must be heated to a temperature of at least 300° F to release the cannabinoids in the plant. See R. Willette, Oral Ingestion of Cannabis Products (Dec 1987) (unpublished manuscript), quoted in Fitzkee, Prosecuting a Urinalysis Case: A Primer, The Army Lawyer 7, 17 n. 110 (September 1988). These studies have shown that simply placing maryuana in boiling water will not release the chemicals necessary to create the metabolites of tetrahydrocannabinol (THC) in a person’s urine. It is true that hashish or “hash oil” (which is produced by using a solvent on leaf marijuana) produces free THC. However, the concentrations of that chemical in those products is so strong (up to 60 percent purity) that chemists would surely know if a person had taken it. See Report of an ARFfWHO Scientific Meeting on Adverse Health and Behavioral Consequences of Cannabis Use, Addiction Research Foundation (1981). Thus, appellant’s chances of prevailing on her primary defense, i.e., that Capt Sztuka must have spiked her gumbo with marijuana, would seem to be remote.
73. Further, the key document in this case is the “transcript” of appellant’s tape which the defense never introduced at trial. Thus, the normal inferences pertaining to non-disclosed evidence should apply. When a party fails to disclose evidence, one can assume that the evidence might be used against that party. Cf. Arizona v. Young-blood, 488 U.S. 51, 59-60, 109 S.Ct. 333, 338, 102 L.Ed.2d 281 (1988) (Stevens, J., concurring); United States v. Manuel, 43 MJ 282 (1995); United States v. Kern, 22 MJ 49, 52 (CMA 1986). As the court below found, “to say” that the tape “is subject to interpreta*281tíon is to place it in” the light most favorable to appellant. ¶ 68. Since appellant did not produce the tape or a partial transcript of it until the post-trial hearing, the opposite is true. Based on my review of the findings by the judge and the court below, especially the events leading up to the search and the search itself, the transcript evidencing other misconduct, the lack of credibility of the witness promoting the “new” evidence, and the fact that chicken gumbo is normally not reheated at 300° F, I do not believe a new trial would give a more favorable result. Accordingly, I would affirm the decision of the court below.