(dissenting):
Despite their assertion to the contrary, the majority’s decision is either a reflection on the integrity of the court member or a rejection of rehabilitation of potential court members. Neither is appropriate. Additionally, it misapplies our “clear-abuse-of-discretion” standard of review, United States v. White, 36 MJ 284, 287 (CMA 1993). For these reasons I dissent.
FACTS
This case is similar to others we have seen. See, e.g., United States v. Roane, 43 MJ 93 (1995) (accused used roommate’s telephone jack); United States v. Reed, 34 MJ 282 (CMA 1992) (accused used roommate’s ATM card). The issue is whether appellant had permission to use his friend's American Express card for charges totaling nearly $5,000. No law enforcement officers testified in this case either at trial or at the investigation under Article 32, Uniform Code of Military Justice, 10 USC § 832. Appellant’s friend, Airman First Class John R. DiRoma, Jr., testified, along with an auditor from American Express, for the Government. The only witness for the defense was appellant. The issue centered around appellant’s belief that he could lawfully take and use his friend’s ATM card.
The court members were placed under oath for the voir dire. During the voir dire of the court members, it was learned that Lieutenant Colonel (LtCol) B was previously an area defense counsel, while Major (Maj) B was married to an OSI agent.
Maj B testified on voir dire as follows:
TC: Thank you. Major [B], I just want to ask you a couple of questions about your association with OSI. I understand your husband is an agent for them, and it was also my understanding that he was involved in some way on this particular case. Are you aware of that?
MEMB MAJ [B]: No. I had no idea. We don’t discuss eases. If he ever gave me any information at all — if he ever did — I would want to know more. So, I just don’t want to know. We don’t discuss any eases.
TC: Have you heard him make any references at all to this case?
MEMB MAJ [B]: No.
TC: Let me ask you an even more specific question. Have you heard him make any references at all that could be applied to this case?
MEMB MAJ [B]: Yes.
TC: If I could ask, what references would those be?
MEMB MAJ [B]: It was a conversation on the telephone but I don’t know who he was talking to because I didn’t answer the telephone when we were at home. He made a comment like, “More money?” So when he got off the phone I said, “What are you talking about, ‘more money’? I didn’t know who he was talking to. He said, “Oh, it is a case that is being worked on. Somebody said that this guy took more money.” That would be something that I might associate with this case.
TC: Did he say anything about that case? MEMB MAJ [B]: No.
*233TC: So you have a standing rule in your house not to discuss cases?
MEMB MAJ [B]: Yes.
TC: Just one last general thing. Is there anything about your marriage to your husband or in your relationship to your husband that would cause you to have any problems in sitting in a court-martial? MEMB MAJ [B]: No. I mean since he has worked in OSI, it has always been his work and mine has been mine. I don’t really get involved with what he does.
The judge later questioned Maj B, as follows:
MJ: Just to clarify for the record, you had no association with this case based on your relationship with your husband?
MEMB MAJ [B]: Absolutely not.
MJ: Or his professional association with OSI?
MEMB MAJ [B]: No, sir.
MJ: And you heard none of the details of this particular case?
MEMB MAJ [B]: No, sir.
MJ: And you have not formed any opinions in regards to the charge and specifications in this case based on your husband’s professional occupation with the Air Force?
MEMB MAJ [B]: No.
Both members articulated their ability to remain impartial, listen to the evidence, and follow the judge’s instructions. There was no questioning of Maj B as to the other witnesses in the case.
During argument on the challenge for cause against Maj B, defense counsel stated:
Despite her protestations that they do not discuss things, I find that highly unusual. That would be a unique case in which one’s profession did not bleed over into their personal lives, and that there were no theoretical discussions as to the value or the procedures or processes of people they deal with in their jobs. In this case, if for no other reason, we would think that the appearance aspect of this: the agent whose name is throughout this case file.
The defense did not call her husband in rebuttal of her testimony.
The prosecutor argued the following:
The United States does not anticipate Agent [B]’s name coming up even once in this case. Certainly, we have no plans for bringing it up and we are not aware of any reason that it would come up as he was the assistant case agent and merely derived for some support for the main case agent. The Defense Counsel’s concern is based solely on the fact that she happens to be married to that individual. As she stated, there has been no bleedover and it wouldn’t affect her at all.
The judge found that Maj B’s “answers were significantly direct, sincere, and that they reflected that she keeps apart their two particular professional careers; that she knows nothing about this particular case; that she has not formed any opinion whatsoever in this particular case; and in regards to her particular answers, she has nothing to state as an effect, either for her or for her husband in regards to her particular participation in this ease or the results of this particular case.”
Subsequently, both challenges for cause against these two members were denied, and the defense used the peremptory challenge against LtCol B.
In seeking to preserve the challenge for cause, the defense stated that “but for the denial of the challenge for cause as to Major [B], we would have challenged yet another member.”
DISCUSSION
Our standard of review is whether the judge clearly abused his discretion. White, 36 MJ at 287. This Court does not appear to distinguish between different “abuse of discretion” standards depending on the alleged errors. In United States v. Travers, 25 MJ 61, 63 (CMA 1987), quoting Renney v. Dobbs House, Inc., 275 S.C. 562, 274 S.E.2d 290, 291 (1981), the Court notes that “[a]n abuse of discretion arises in cases in which the judge was controlled by some error of law or where the order, based upon factual, as distinguished from legal, conclusions, is without *234evidentiary support.” Travers applies a stringent abuse-of-discretion standard: “To reverse for ‘an abuse of discretion involves far more than a difference in ... opinion---The challenged action must ... be found to be ‘arbitrary, fanciful, clearly unreasonable,’ or ‘clearly erroneous’ in order to be invalidated on appeal.’ ” 25 MJ at 62, quoting United, States v. Yoakum, 8 MJ 763, 768 (ACMR 1980), ajfd on other grounds, 9 MJ 417 (CMA 1980); see also Haney v. Rose, 642 F.2d 1055, 1060 (6th Cir.l981)(“[A] trial judge’s finding of impartiality should be set aside only upon a showing that prejudice is manifest.”).
This Court has stressed the Sixth Amendment right to “an impartial jury.” Voir dire is the method to weed out members who may be biased. The Manual sets forth specific grounds for challenges for cause plus the catchall mentioned by the majority. RCM 912(f)(1), Manual for Courts-Martial, United States (1995 ed.). Neither the Manual nor 28 USC § 1870 prohibits police officers from sitting as jurors. “Bias and prejudice will not be presumed from the fact that a juror is engaged in law enforcement work.” United States v. LePera, 443 F.2d 810, 812 (9th Cir.1971) (citation omitted).
The question of “partiality” of a court member is “plainly one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror’s protestation of impartiality have been believed.” Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984). Consequently, “the trial court’s resolution of such questions is entitled, even on direct appeal, to ‘special deference.’ ” Id. at 1038, 104 S.Ct. at 2892. This “determination is essentially one of credibility, and therefore largely one of demeanor” that should be determined by the trial judge. Id. Judges are in the best position to evaluate both the verbal and non-verbal communication, including the raised eyebrow, the hesitancy, and movement as to whether the court member is being honest during voir dire. The judge in this case recognized that he had to make the credibility decision.
Initial questioning of a court member may establish a ground for challenge for cause, see, e.g., Patton, supra at 1038, 104 S.Ct. at 2892-93; such as views on the death penalty, see, e.g., Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); pretrial publicity, United States v. Curtis, 44 MJ 106, 138-140 (1996), rev’d as to sentence on recon., 46 MJ 129 (1997); or inflexibility on sentence in a case, United States v. Heriot, 21 MJ 11,13 (CMA 1985)(“judge may wish to give the member additional instructions and ask him some clarifying questions”). These initial responses usually lead to rehabilitation.
The majority’s decision undermines the practice of rehabilitation in Federal, state, and military courts. When the juror indicates that he or she will follow the judge’s instructions, keep an open mind, and weigh all the evidence, absent disbelief by the judge, the member is “mentally free to render an impartial finding and sentence based on the law and the evidence.” United States v. Parker, 6 USCMA 274, 284-85, 19 CMR 400, 410-11, (1955); see also United States v. Tippit, 9 MJ 106 (CMA 1980); United States v. McGowan, 7 MJ 205 (CMA 1979); United States v. Findlay, 7 MJ 931 (ACMR 1979).
The fact that the court member’s husband was involved with investigating a crime against a person’s property does not disqualify the member, just as “a mere distaste for a crime does not disqualify a member.” United States v. Karnes, 1 MJ 92, 94 (CMA 1975).
The Supreme Court has not disqualified a juror based on implied bias. See, e.g., Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982); Dennis v. United States, 339 U.S. 162, 172-73, 70 S.Ct. 519, 524, 94 L.Ed. 734 (1950) (Reed, J., concurring) (“implied bias” may be applied in appropriate circumstances); United States v. Wood, 299 U.S. 123, 57 S.Ct. 177, 81 L.Ed. 78 (1936). Cf. Gonzales v. Thomas, 99 F.3d 978 (10th Cir.1996)(court did not find actual or implied bias because the juror’s answers were honest and the juror’s date rape was unlike the charged rape offense); Burton v. Johnson, 948 F.2d 1150 (10th Cir.1991)(found implied bias). Justice O’Connor wrote separately in Phillips to state that “implied bias” might be *235applied “in appropriate circumstances.” 455 U.S. at 221, 102 S.Ct. at 948. She stated:
Some examples might include a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction.
Id. at 222,102 S.Ct. at 948-49.
The Court of Appeals for the Seventh Circuit in Hunley v. Godinez, 975 F.2d 316, 319, 320 (1992), stated that presumed bias or implied bias should be reserved for “extreme” or “rare” circumstances. This is not that case.
The prosecutor asked Maj B if she knew that her husband was involved with this case. She said that she was unaware of any involvement. Indeed, there is no evidence in the record that he was involved with appellant’s case. The majority points only to the argument of counsel, but that is not evidence. As the Supreme Court has noted:
It [the challenge to the array] consists exclusively of counsel’s statements, un-sworn and unsupported by any proof or offer of proof. The Government did not explicitly deny those statements. But it was under no necessity to do so. The burden was upon the petitioner as moving party “to introduce, or to offer, distinct evidence in support of the motion.”
Of itself this failure in tender of proof would require denial of the motion____
Frazier v. United States, 335 U.S. 497, 503, 69 S.Ct. 201, 205, 93 L.Ed. 187 (1948) (citations omitted); see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). There is neither a proffer nor evidence in this case. It may be that Maj B’s husband is the evidence custodian or would sign off in a perfunctory way on all investigations. See United States v. Dinatale, 44 MJ 325 (1996)(denied challenge for cause against the President of the court-martial who had signed off on the report of Dinatale’s mental responsibility board).
In any event, upon being questioned, Maj B said that she would remain impartial, listen to the evidence, and follow the judge’s instructions. Additionally, she stated that she had formed no opinion in this case. Defense counsel did not ask for a session under Article 39(a), UCMJ, 10 USC § 839(a), to call the member’s husband to explore his involvement with the case. Now, the majority assumes the worst, even though there is not the slightest appearance of unfairness based on the facts presented. Cf. United States v. Dinatale, supra.
As I warned in United States v. Dale, 42 MJ 384, 386-88 (1995), the Court seems to be establishing a per se rale against law enforcement personnel sitting as court members. Now a majority has extended that rale to spouses of law enforcement agents. Where goest thou? As Chief Judge Everett echoed in United States v. Stuckey, 10 MJ 347, 359 (CMA 1981), quoted in United States v. Lopez, 35 MJ 35, 44 (CMA 1992) (Cox, J., concurring with modest reservations), “[a] military commander has responsibilities for investigation and for law enforcement that a magistrate does not possess.” This same thought was echoed in Lopez by then-judge Cox, observing that a commander cannot be detached and neutral because of this role. Id. at 45. If we complete the majority’s' circle of reasoning, it only follows that any connection with law enforcement will disqualify a servieemember, maybe even a commander, from serving as a court member.
The majority formulates a new standard to be applied retroactively. The opinion does not set forth a single standard to be applied in cases concerning challenges for cause. Maybe this issue is not susceptible to a single standard and we should have multiple standards. If that is the case, what other standards will we adopt in the future? This issue will continue to bedevil us. However, the issue could be avoided if trial judges would liberally grant challenges for cause. But they should not be required to grant them based on arguments versus evidence in a case.