(concurring in the result):
In my view we need not resort to harmless-error analysis in this case, because the military judge did not err.
This case involved a factual issue whether a conversation with a witness occurred. Appellant testified that he relied on bad telephonic advice from a woman at the base finance office. Trial counsel attempted to persuade the court members that the telephone conversation never happened. Trial counsel argued, “Where is she? Simply put, she doesn’t exist, members because he never went and called Finance and got that advice.”
In the first granted issue appellant asserts that the missing-witness inference was improperly used against him. In my view the missing-witness doctrine was not invoked and does not apply to this case. Trial counsel did not suggest that an absent witness would have testified adversely to the defense. Trial counsel properly argued that appellant was lying about his conversation with someone at base finance and that the conversation never happened. The military judge properly cau-*214tíoned the members that the burden does not shift to the defense to prove innocence but remains with the prosecution. In my view there was no error.
Furthermore, even if the argument of trial counsel is construed as commenting on the failure of appellant to produce witnesses, such argument would have been proper in this case. This Court has unanimously held, “It is well established that the government may comment on the failure of a defendant to refute government evidence or to support his own claims.” United States v. Webb, 38 MJ 62, 66 (CMA 1993), quoting United States v. Coven, 662 F.2d 162, 171 (2d Cir. 1981). Appellant claimed that he kept the allowances because he relied on bad advice from a woman at the base finance office. The noncommissioned officer-in-charge of the base finance office testified that appellant’s telephone inquiry would have been answered by one of two women working as customer service representatives. Defense counsel took the agent of the Office of Special Investigations to task for not tracking down and interviewing the two women. In my view it was fair comment under Webb for trial counsel to point out that appellant made no effort to contact the witness who could back up his claim.
With respect to the second granted issue, I believe that the military judge acted within the limits of his discretion. Defense counsel wanted to introduce evidence that the unwritten policy of referring servicemembers to the base finance office was reduced to writing after appellant had moved from his off-base quarters to an on-base dormitory. Although trial counsel invoked Mil.R.Evid. 407, Manual for Courts-Martial, United States (1995 ed.), in his objection, the military judge excluded the evidence on the basis of relevance. The military judge correctly observed that there was no change in policy. The only change was that the unwritten policy was reduced to writing. The military judge permitted the defense to establish by cross-examination of the government witness and by direct examination of its own witness that the policy was unwritten, that it may have been misunderstood, and that it may not have been followed. Thus the military judge allowed the defense to fully explore the real issue: whether the policy was understood and followed by Housing Office counselors. In my view the military judge did not abuse his discretion by excluding marginally relevant evidence of events that happened after appellant was processed through the Housing Office.
For the foregoing reasons I join in affirming the decision of the court below. Accordingly, I concur in the result.