(dissenting):
I agree with Semor Judge Everett’s dissent and with CMef Judge Dixon’s dissent in the court below (42 MJ 753, 757), as well. Resolution of tMs case by the majority demonstrates some inherent difficulties in applying Mil.R.Evid. 313(b), Manual for Courts-Martial, Urnted States, 1984. A commander’s intent to prosecute is logically consistent with, and in military parlance practically indistinguishable from, an intent to maintain the security, military fitness, or good order and discipline of Ms umt. In addition, m my view deMal of defense evidence tending to show unknowing ingestion by appellant under the rubric of irrelevance is simply unwarranted. Accordingly, I dissent.
Until today tMs Court, when determining the validity of inspections under Mil.R.Evid. 313(b), had placed great weight on prior reports of criminal activity. For example, in United States v. Campbell, 41 MJ 177, 182 (CMA 1994), we said that “[p]roof of selection based on standard criteria or routine practice is well recognized as clear and eonvinemg evidence that the persons inspected were not principally chosen on the basis of suspicion of criminal activity amounting to less than probable cause.” (Emphasis added.) Moreover in a eompamon case to Campbell, the majority* upheld an inspection under Mil.R.Evid. 313(b) because, prior to ordering the inspection, “there had not *124been a ‘report of a specific offense in the unit.’ ” United States v. Taylor, 41 MJ 168, 172 (CMA 1994). Today, I wonder if the majority means to overrule those cases because it effectively ignores the impact a report of prior criminal activity had on Lieutenant Colonel Schell’s decision to order the so-called “inspection.”
I have no doubt that Lt Col Schnell generally had it in his mind to use the urinalysis to maintain good order and discipline in his unit. See Mil.R.Evid. 813(b). However, his primary purpose in his own words “was to end the ‘finger pointing, hard feelings,’ and ‘tension’ in the unit and ‘get people either cleared or not cleared.’ ” 45 MJ at 122. In my view, this urinalysis was “[a]n examination made for the primary purpose of obtaining evidence for use in a trial by court-martial or in other disciplinary proceedings----” Mil.R.Evid. 313(b). Any other construction of this officer’s words ignores their plain meaning and renders Mil.R.Evid. 313(b) meaningless.
The words of Lt Col Schnell’s superior officer, Colonel Underwood, confirm my view. Col. Underwood testified:
Q [DC] Okay. Do you have an opinion about what the urinalysis ... would do, at the time — not in hindsight but at the time? A There were discussions way before that urinalysis took place. And, specifically, I don’t recall ... I think the thing that we thought is that there may be a high degree of probability that the person who planted the marijuana could have also been using it — or an illicit drug of some sort. Q I’m sorry, sir?
A Any kind of illicit drug. We felt that, obviously, if they had access, they may be using it themselves.
Q And so if you did a urinalysis, you’d be able to find out who?
A Maybe.
Q And so that would have been the benefit of urinalysis?
A It may have helped us.
Q [TC] ... Now, in regard to your discussions regarding the reason for urinalysis, was there any discussion concerning morale problems in the unit as justification for the urinalysis, to your recollection?
A No.
Q All right.
A There were morale problems in the unit. That had nothing to do with the urinalysis. And there were some organizations ...
Q But as a reason for the urinalysis, for taking the urinalysis?
A No. Correct. The morale problems were not the reason for the urinalysis. Q The reason for the urinalysis was to further the Adams investigation. That’s your understanding?
A Yes. Now, I was on leave, and so this all took ... some of these plans and details were finalized during a period of time when I was absent by my Deputy [Lt Col Schell],
I also dissent from the majority’s holding that the military judge did not abuse his discretion in excluding defense evidence that marijuana had been planted in an officer’s briefcase in appellant’s building around the time of appellant’s positive urinalysis. Appellant’s defense in this case was innocent ingestion. That illegal drugs had been planted on an officer who worked in the same building as appellant around the same time as appellant’s positive drug test was clearly relevant to this defense. See United States v. Morgan, 581 F.2d 933, 936-37 (D.C.Cir. 1978) (evidence another person in building selling same kind of drugs “decidedly relevant” to determine whether there was intent to distribute); cf. United States v. Hargrove, 33 MJ 515 (AFCMR 1991) (evidence of tampering with urinalysis at Andrews AFB held not relevant to urinalysis at Scott AFB). These facts provide logical support for an inference that appellant, who worked in the same building and at same time was found with illegal drugs in his person, may likewise have had those drugs foisted upon him. The military judge and the appellate court below provided no reason for concluding that this marijuana-planting attempt had no tendency to make appellant’s defense of innocent ingestion “more probable.” Mil.R.Evid. 401.
*125The majority of this Court, perhaps uncomfortable with such an obviously incorrect relevance holding, attempts to hang its hat on Mil.R.Evid. 403, which states:
Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay, waste of time, or needless' presentation of cumulative evidence.
The majority’s stated points of dissimilarity, however, go only to the weight to be afforded this evidence by a factfinder. Moreover, no mention was made by the majority or the lower appellate court of the express concerns of Mil.R.Evid. 403, such as unfair prejudice, confusion, or delay. Finally, no consideration whatsoever is given to the fact that this evidence corroborated appellant’s only defense of innocent ingestion. In my view, the military judge’s evidentiary ruling was based on incorrect principles of law. See Koon v. United States, — U.S.-,-, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996) (“A district court by definition abuses its discretion when it makes an error of law.”)
I agree with Chief Judge Dixon’s perceptive view of the realities of this court-martial, as follows:
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 fact-finders 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.
42 MJ at 759 (emphasis added). As I said in an earlier opinion:
An American servicemember has a constitutional and codal right to defend himself or herself at a court-martial. The majority today eviscerates this right by utilizing the rubric of judicial reasonableness to preclude even consideration of her defense by court members. Her defense to the charge was not a strong one, but it was her only one.
United States v. Rankins, 34 MJ 326, 336 (CMA 1992) (Sullivan, C.J., dissenting).
Under the circumstances of this ease, I conclude that it was constitutional error to cut off appellant’s sole defense. See United States v. Woolheater, 40 MJ 170 (CMA 1994). I would reverse the decision below and order a rehearing.
I dissented in that case.