(concurring in the result):
I disagree with the majority’s statement that “[t]he operation of Mil.R.Evid. 404 and 405, [infra ] as pertains to this case, is quite plain.” 47 MJ at 112. On the contrary, the operation of these rules in general and in this case in particular is anything but plain.* See Government of the Virgin Islands v. Grant, 775 F.2d 508, 511-12 (3d Cir.1985). Moreover, the prosecution did not object to the excluded evidence on hearsay grounds and, therefore, the majority cannot now support its opinion on that basis. I would affirm appellant’s conviction, but not for the reasons posited by the majority.
A critical factor in the majority’s analysis is that “the defense has implicitly conceded throughout [that] a mere assertion of nonob-servation of criminal conduct does not equate to reputation or opinion evidence.” 47 MJ at 112. I note, however, that appellate defense counsel has not conceded this issue at all. He states:
The statements by the defense witnesses were not specific acts of conduct on the part of appellant. The witnesses did not talk about a specific event or date. However, if they are determined by this Honorable Court to be specific acts of conduct, then such testimony was admissible under M.R.E. 405(b) and 404(a)(1)....
Final Brief at 21.
Moreover, I read the excluded evidence more broadly than the majority does. The particular statements excised by the military judge are noted in the majority opinion. 47 MJ at 110, 111. A fair reading of them suggests that these witnesses were substantially giving their opinion that appellant did not use drugs. See United States v. Breeding, 44 MJ 345, 350 (1996) (“Reputation is what the witnesses have heard about appellant ... whereas opinion evidence relates to their own personal observations and experiences with appellant----”) In addition, such testimony can be reasonably considered akin to reputation evidence. See Wright and Graham, 22 Federal Practice and Procedure *114§ 5266 at 598; contra Virgin Islands v. Grant, supra. Even if these statements by the defense witnesses are literally construed, evidence of specific non-acts is not plainly barred by Mil.R.Evid. 405(b), Manual for Courts-Martial, United States, 1984 (specific instances of the person’s conduct). See Grant, supra at 512.
In any event, evidence of “specific instances of conduct” is admissible where “character or a trait of character ... is an essential element of an offense or defense.” Mil. R.Evid. 405(b) (emphasis added). Here, appellant was found guilty of a single specification of wrongfully and knowingly using marijuana under Article 112a, Uniform Code of Military Justice, 10 USC § 912a, on the basis of positive urinalysis evidence. See generally United States v. Harper, 22 MJ 157 (CMA 1986). In my view, the uniqueness of this type of prosecution entitled appellant to present evidence that those familiar with him have not observed him using drugs, and such evidence should be considered essential in these urinalysis cases. Cf United States v. Reiser, 57 F.3d 847, 857 (9th Cir.1995); United States v. Swanson, 9 F.3d 1354, 1359 (8th Cir.1993) (strictly construing Fed.R.Evid. 405(b) to require more than relevance to defense). After all, we have held that evidence of a servicemember’s religious opposition to drugs is admissible at a court-martial to create a reasonable doubt about drug use. See United States v. Brown, 41 MJ 1 (CMA 1994).
I disagree with the majority that the form of excluded evidence precluded the defense from presenting it to the members. See also United States v. Rankins, 34 MJ 326, 336 (CMA 1992) (Sullivan, C.J., dissenting) (“defense ... was not a strong one, but it was her only one”). Nevertheless, in view of the testimony from the actual witnesses who were permitted to testify at trial concerning non-use, I am convinced this error by the military judge was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Accordingly, I join my fellow judges in affirming appellant’s conviction.
Apparently this issue was not plain to the military judge who initially admitted these statements and then excluded them at a later date. He then allowed defense-character witnesses who actually testified to give similar testimony on non-use by appellant during the charged period.