(concurring in part and dissenting in part):
I disagree with the majority opimon on the first issue for the reasons stated in the dissenting opimon of Chief Judge Dixon in the court below. 42 MJ 753, 757 (1995).
As to whether the challenged urinalysis was a lawful inspection under Mil.R.Evid. 313, Manual for Courts-Martial, Urnted States (1995 ed.), I need go no further than the testimony of the acting commander and the consistent findmgs of the military judge. The former revealed that there had been “ ‘a lot of finger pointing, hard feelings,’ and ‘tension’m Building 505 as a result of the Adams incident” and he “wanted to get people either cleared or not cleared.” 45 MJ at 120 (emphasis added). The judge found as fact that the acting commander’s “primary purpose [in ordering the urinalysis] was to resolve the questions raised by the Adams incident, not to prosecute someone.” (Emphasis added.)
Thus, both this findmg of fact and the acting commander’s testimony shout, loud and clear, that the urinalysis was ordered to assist an mvestigation of the Air Force Office of Special Investigations, not out of some general concern for the well-bemg of the umt as that might be affected by the presence in the umt of contraband drugs. At a mimmum, the Government failed to carry its burden of providing clear and convincing evidence to the contrary. See Mil.R.Evid. 313(b). A dragnet search, focused on finding criminal evidence and/or crimmals themselves, .even without a particular suspect m imnd, nonetheless remains a search. The additional factors relied upon by CMef Judge Dixon add even greater weight to these conclusions.