(dissenting):
It is important to remember that the appellant was not found to have any white crystalline powder on his person or in any of his possessions. The evidence of possession of cocaine by the appellant consists solely of the testimony of his alleged accomplice, Whipple, and a laboratory analysis of the white crystalline powder purportedly surrendered by Whipple to military authorities. The question before this Court is twofold: First, was the chain of custody as to Whipple’s white crystalline powder sufficient as a foundation for the admission of this chemist’s laboratory analysis? Second, if the foundation was sufficient, was it material to prove possession of cocaine by this appllant? I find it necessary to write only as to the first facet of the question, in that I do not believe that there was a sufficient foundation laid for introduction of this chemical analysis evidence. I do not reach the question of its materiality.
The general rule is set forth in McCormick et a 1. on Evidence (2nd Ed. HB 1972), Sec. 212, pp. 527-28 (footnotes omitted):
It will be readily apparent that when real evidence is offered an adequate foundation for admission will require testimony first that the object offered is the object which was involved in the incident, and further that the condition of the object is substantially unchanged. If the offered item possesses characteristics which fairly unique and readily identifiable, and if the substance of which the item is composed is relatively impervious to change, the trial court is viewed as having broad discretion to admit merely on the basis of testimony that the item is the one in question and is in a substantially unchanged condition. On the other hand, if the offered evidence is of such a nature as not to be readily identifiable, or to be susceptible to alternation by tampering or contamination, sound exercise of the trial court’s discretion may require a substantially more elaborate foundation. A foundation of the latter sort will commonly entail testimonially tracing the “chain of custody” of the item with sufficient completeness to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with.
It should be further noted that neither the Whipple white crystalline powder nor any of the various containers in which it found itself was introduced into evidence. The evidence offered by the Government was an incomplete custody sheet, a DEA form entitled “Report of Drug Property Collected, Purchased, or Seized,” and the testimony of a chemist Buer. The DEA form contained certain entries which included the hearsay information that the individual containers which held Whipple’s white crystalline power had a piece of white surgical tape with the initials CEL on it. Neither the packages nor the testimony of anyone with initials close to CEL was produced at trial.
I would observe that three of the persons who handled Whipple’s white crystalline powder did not testify. It is interesting that no comprehensive custody sheet was introduced showing the handling by these three persons or what disposition they made of the material.
*294In this brief summary, one other observation is essential in regard to the general rule stated above. The white crystalline powder taken from Whipple was contained in six small sealed plastic bags and one unsealed wax paper packet. The white crystalline powder that the chemist Buer tested was in seven or eight plastic bags, one wax paper packet and one small plastic vial. It is obvious that between Whipple and the chemist, either some one of the five persons in this chain of custody (only two of whom testified) changed its composition, or the substance tested by the chemist was not the same white crystalline powder taken from Whipple. There is no testimony by any witness that he changed the make up of the white crystalline powder taken from Whipple.
With these facts in mind, I am forced to dissent. I set forth below the law as I perceive it in relation to the facts enumerated above.
Identity of the Tested Substances Fungibility
I disagree with the majority opinion in its unjustified relaxation in this case of the stringent tracing requirements necessary to establish the foundation for the admission of fungible real evidence at a military trial. See United States v. Nault, 4 M.J. 318, 320 (C.M.A.1978). It does so on the basis of its conclusion that the cocaine in this case had been identified by its packaging and otherwise to the extent that it was no longer “fungible” within the meaning of Nault. See United States v. Fowler, 9 M.J. 149, 152 (C.M.A.1980). Accordingly, the majority implies that a strict chain of custody for identity purposes need not be established in this case to connect the tested substances to Whipple’s white crystalline powder. In this way, the majority permits three separate gaps or missing links in this chain of custody to go completely unexplained or accounted for in less than a satisfactory manner.
The basis of the majority’s conclusion that the cocaine in this case is not “fungible” is that there are special facts in this case which render it readily identifiable. See United States v. Fowler, supra; United States v. Bass, 8 U.S.C.M.A. 299, 24 C.M.R. 109 (1957). The special facts particularly mentioned in the opinion are that the cocaine was packaged in a particular way. The majority notes that Whipple’s white crystalline powder was in six small sealed plastic bags and one unsealed wax paper packet; all these materials were further contained in a small white opaque shopping bag which was unsealed. Such factual observations are supported by the in-court testimony of Whipple, Hampton and Hamilton. In addition the majority observed that, with insufficient discrepancies, the chemist Buer testified that the cocaine he tested was in seven or eight small plastic bags, one wax paper packet, and one small plastic vial all likewise contained in a clear plastic bag generally corresponding to the Whipple shopping bag. From this comparison of testimony in the record of trial, the majority concludes that, like the manicured marihuana in United States v. Fowler, supra, these packages of cocaine were not “fungible goods” within the contemplation of Nault and were readily identifiable as Whipple’s white crystalline powder.
I do not believe this is a fair statement based on the facts of this case or those stated in United States v. Fowler, supra.
First, Whipple, Hampton, Coste, Hamilton and Loveless, previous links in the chain of custody, did not at trial identify the substances tested by Buer as Whipple’s white crystalline powder which they had once handled. This was done in United States v. Fowler, supra, by several witnesses who preceded the gap in the chain of custody in that case.
Second, cocaine as a white powder substance must generally be considered fungible in the sense that it does not possess individual physical characteristics which on sight would permit distinguishing one amount of cocaine from another. In Fowler, the marijuana, another generally fungible substance, was shown to be manicured, that is, cut in an unusual way which the witnesses at trial recognized. Here, only the chemist Buer and Whipple testified that *295the tested cocaine and Whipple’s white crystalline powder had any readily identifiable qualities or characteristics. Buer testified that the cocaine in one of his small plastic bags had a color different from the rest. Whipple, however, had previously testified that the substance in his wax paper packet was different in quality from the rest. I do not believe this evidence is sufficient to show that either of these substances was capable of ready identification as was the manicured marihuana in Fowler.
Third, neither Whipple, Hampton, Coste, Hamilton or Loveless identified in court the containers of the substances tested by Buer as the original containers of Whipple’s white crystalline powder they once handled. This was done in both United States v. Fowler, supra, and United States v. Bass, supra at 304, 24 C.M.R. at 114.
Fourth, while the original containers of Whipple's white crystalline powder might be considered readily identifiable under certain circumstances, such an evidentiary inference does not lie in the present case. In both Fowler and Bass, the records of trial clearly indicated that there were no discrepancies in the identification or labeling of the substances. Here several discrepancies which were unexplained are apparent on the record; these concern the physical appearance of the packaging. First, two extra small plastic bags of a white powder substance were found in the evidence envelope tested by the chemist Buer. Second, there was also found one extra small plastic vial. Neither of these additions was identified or even mentioned by previous links in the chain of custody. The chemist Buer also offered no explanation for their presence. Third, the chemist Buer offered no clear testimony that the small plastic bags were sealed with adhesive tape as testified by Whipple and Hampton. In light of these unexplained discrepancies, Fowler is no authority for concluding the packaging of the cocaine in this case created an evidentiary inference that the substances tested by Buer were readily identifiable as Whipple’s white crystalline powder.
In light of these factors, the Government has not established that the alleged cocaine in this case was not fungible within the meaning of United States v. Nault, supra, because of its distinctive packaging and otherwise. I believe that for the Government to establish the identity of the substances tested by Buer, it was necessary to show a continuous chain of custody of Whipple’s white crystalline powder to the chemist Buer.
Chain of Custody
Perhaps sensing the unpersuasiveness of its fungibility holding or in hopes of showing Whipple’s white crystalline powder was in an unchanged condition when tested by Buer, the majority also concludes that a continuous chain of custody was established in this case. This conclusion is reached despite the fact that three separate links in the chain of custody did not testify in court as to their handling of Whipple’s white crystalline powder. Two of these missing links, Commander Coste and evidence custodian Simpson, are not discussed at all with respect to the evidentiary impact of their absence as witnesses at this court-martial. Such unexplained omissions do not generally suffice to provide a proper showing of a continuous chain of custody. See generally United States v. Nault, supra. In any event, I will proceed to discuss the third gap in this chain of custody.
The missing link in the chain of custody which is discussed by the majority opinion is the handling of Whipple’s white crystalline powder by Special Agent Loveless, an investigator for the Drug Enforcement Administration. Though noting that Loveless did not testify at trial, the majority states that this gap was bridged by certain signatures of Agent Loveless on prosecution exhibit 10 which accompanied the substances the chemist Buer tested. The majority reasons that these signatures on the DEA Form accompanying the substances tested by Buer provide an evidentiary inference that the signatory Loveless had these materials in his possession. It notes that the date following these signatures may pro*296vide evidence on when he had them in his possession. Finally, it concludes that since Hamilton testified that on this same date he turned Whipple’s white crystalline powder over to Loveless, it may be inferred that the chemist Buer tested the same substances that Agent Loveless received from Commander Hamilton, i. e., Whipple’s white crystalline powder. I must disagree.
First, the conclusion of the majority’s inferential theory is contradicted by other evidence in this case. The chemist Buer testified that this DEA form with Loveless’ signatures accompanied the following items: seven or eight small clear plastic bags, one wax paper packet and one small plastic vial. Under the majority’s reasoning these materials all can be inferred to have been in the possession of the signatory Loveless. Continuing with the majority’s rationale, from the date following these signatures, it can be inferred that all these materials were in Loveless’ possession on April 9, 1976. Finally, consistent with the majority theory, it also must be inferred that all of these materials were given to Loveless by Hamilton on that date. However, other evidence in this case including prosecution exhibit 9 clearly indicate that Whipple’s white crystalline powder provided by Hamilton to Loveless only included six small plastic bags and one wax paper envelope. Accordingly, the majority’s inferential theory is fatally flawed.
Second, a key inference of the majority’s theory is based on obvious hearsay evidence which has not qualified under any exception to this rule. Para. 139, Manual for Courts-Martial, United States 1969 (Revised edition). The majority opines that the date following the signature may be used to show not only that Loveless, the signatory, possessed the accompanying substances at some time but also when that time was. This is a situation where the signed date is offered to prove the truth of its statement that Loveless possessed the tested substances on April 9, 1976, and not simply provide an evidentiary inference from the handwriting that the signatory did possess it at some time. The majority opinion already has noted, in footnote 11, that similarly used entries on this same part of the DEA form are hearsay evidence and the chemist Buer gave no testimony about DEA procedures for preparing such forms.1 Accordingly, I do not believe these signed dates can be used for this purpose and the majority’s theory again falters.
Finally, the substances tested by the chemist Buer have not been sufficiently traced to Whipple by the establishment of a continuous or otherwise sufficient chain of custody. Cf. United States v. Bass, supra. Ignoring the gap created by Commander Coste’s absence from trial, the majority opinion traces Whipple’s white crystalline powder to Agent Loveless so far as April 9, 1976. There is no competent evidence in this record as to what Loveless did with these particular materials thereafter. Ignoring the gap in evidence created by custodian Simpson’s absence, the majority opinion traces the substances the chemist Buer tested to Agent Loveless at some unspecified time before April 16,1976. There is no competent evidence in this record of trial where Loveless gained possession of these materials. In light of the fungible nature of all these substances, the potential time differential in their possession by Loveless, the obvious discrepancies in their packaging and otherwise, and the absence of Loveless as a witness in court, I am unable to conclude that the Government has properly identified the substances so as to permit the relevant admission of the challenged evidence at appellant’s court-martial. See United States v. Nault, supra. Moreover, I do not believe that any presumption of regularity which might be attributed to Agent Loveless’ handling of both these substances is sufficient for this Court to conclude that “the Buer substances” and Whipple’s white crystalline powder were one and the same.
*297 Unchanged Condition
Even assuming the correct identity of the substances tested by Buer is established, the second foundational requirement for the admission of the laboratory analysis and the chemist’s testimony is that it be shown by the Government that Whipple’s white crystalline powder was substantially unchanged when Buer performed his tests upon them. See McCormick et a 1. on Evidence, supra; see also Comment, Preconditions for Admission of Demonstrative Evidence, 61 Nw.L. Rev. 472, 481-88 (1966). The majority, citing leading federal cases, notes that “the prosecution [need] not exclude every possibility of tampering” but must only satisfy the court “that in reasonable probability” Whipple’s white crystalline powder “had not been changed in important respects.” 9 M.J. at 149. See generally United States v. Daughtry, 502 F.2d 1019, 1021 n. 3 (5th Cir. 1974). In accomplishing this purpose, the majority opinion relies heavily on its conclusion that a presumption of regularity may be attached to Agent Loveless’ handling of Whipple’s white cyrstalline powder. It asserts that in light of this presumption of regularity, the evidence of discrepancies in the condition of Whipple’s white crystalline powder must be considered insufficient to establish tampering. Finally, as an alternative, it finds these discrepancies minimal. The end result is that Whipple’s white crystalline powder was found by the majority to have been tested by the chemist Buer in a substantially unchanged condition from when it was delivered by Whipple.
My review of the record of trial in this case reveals some evidence that Whipple’s white crystalline powder was tampered with prior to its purported testing by the chemist Buer. Moreover, I do not find the presumption of regularity applicable to Agent Loveless’ custody of Whipple’s white crystalline powder. Since the Government did not call the missing links in this chain of custody to account for the handling of Whipple’s white crystalline powder during these periods or otherwise explain the discrepancies in the present case, I am not convinced that no reasonable possibility existed that Whipple’s white crystalline powder was changed prior to its purported testing by the chemist Buer.
I must note at the beginning that this is not a case where the defense merely speculates as to the possibility or opportunity for tampering because one witness in the chain of custody did not testify in court. See United States v. Anguloa, 598 F.2d 1182, 1186-87 (9th Cir. 1979); West v. United States, 359 F.2d 50, 55 (8th Cir. 1966), cert. denied, 385 U.S. 867, 87 S.Ct. 131, 17 L.Ed.2d 94 (1966). There is evidence of actual tampering in this record of trial.
First, the testimony of Whipple indicates that his six small plastic bags contained approximately nine ounces of cocaine (six bags of one and one half ounces) and one ounce in the wax paper packet; ten ounces in all. Hampton testified that he received approximately three-quarters of one pound (twelve ounces) of Whipple’s white crystalline powder. Prosecution exhibit 10 indicates that Agent Loveless marked the DEA form accompanying the substance tested by Buer as having a weight of ten ounces. The chemist Buer stated that the substances he tested weighed approximately twelve ounces. Standing alone and explained, these weight discrepancies might be considered meaningless. See United States v. Walton, 602 F.2d 1176, 1178-79 (4th Cir. 1979); United States v. Barnes, 586 F.2d 1052, 1056 (5th Cir. 1978); United States v. Godoy, 528 F.2d 281, 283 (9th Cir. 1975); United States v. Daughtry, supra. In appellant’s case, however, these discrepancies in weight do not stand alone nor are they explained by the Government.
Second, the testimony of Whipple, Hampton and Hamilton confirm that up to this point in the chain of custody there were six small plastic bags and one wax paper packet containing Whipple’s white crystalline powder. The testimony of the chemist Buer, three steps down the chain of custody, indicates there were seven or eight small plastic bags, one wax paper packet and one small plastic vial. These discrepancies are not explained in any way by the Government.
*298Third, the ambiguous testimony of Hampton noted by the majority indicates that a field test may have been held by federal officers in the sick bay of appellant’s ship. No other evidence was offered by the Government to explain this testimony of Hampton or account for the condition of Whipple’s white crystalline powder during such a field test.
Under these circumstances, this record of trial cannot be considered “bare of any indication” that the evidence was mishandled. See Gass v. United States, 416 F.2d 767, 770 (D.C. Cir. 1969). The Whipple white crystalline powder was in six sealed small plastic bags and an unsealed wax paper packet, all further enclosed in an unsealed plastic shopping bag at least until Loveless received them. In light of the testimony of the chemist Buer, there is a clear indication that after that time the large shopping bag was opened. Moreover, there is a clear indication in the record that some amount of small, sealed, clear plastic bags was added to this bag and they cannot be distinguished from the bags allegedly containing Whipple’s white crystalline powder. There also is a clear indication that one plastic vial was added to the larger plastic shopping bag. Tampering of some type occurred in this case.
The majority, however, asserts that this evidence does not suffice to establish tampering because a presumption of regularity in the handling and storage of the substances attached during Agent Loveless’ possession of Whipple’s alleged white crystalline powder. See United States v. Strangstalien, 7 M.J. 225, 229 (C.M.A.1979). I do not believe this presumption of regularity attached in this case for the following reasons:
First, Agent Loveless was not a neutral chemist but an investigative agent for the Drug Enforcement Administration. In this status, he was much like the prosecutorial custodian of real evidence spoken to in footnote 8 of United States v. Nault, supra. No presumption of regularity was found for such a person’s possession of criminal evidence in view of paragraph 144d, Manual, supra. See United States v. Porter, 7 M.J. 32 (C.M.A.1979); United States v. Neutze, 7 M.J. 30 (C.M.A.1979). See also Gass v. United States, supra. Cf. United States v. Coleman (D.C.Cir. July 11, 1980); United States v. Nelson, 603 F.2d 42, 47 (8th Cir. 1979).
Second, if Agent Loveless was not acting in an investigative or criminal prosecution capacity, it was up to the Government to demonstrate this fact. They did not show what procedures were regularly employed by the laboratory to get materials for chemical testing and whether Agent Loveless was a part of this receiver procedure of the lab. See 9 M.J. at 291 n. 11. Since no testimony whatsoever was offered on these questions, the Government is not entitled to take advantage of the Strangstalien presumption of regularity for Loveless’ period of custody of Whipple’s white crystalline powder.
Third, even assuming the presumption of regularity might be applicable to Agent Loveless as a member of the DEA crime laboratory, the contrary showing of irregularity of treatment by other evidence in this case precludes the operation of the presumption. The possible field test by agents on the ship was not shown to be a part of normal procedure of the lab. Also, the unexplained addition of indistinguishable small plastic bags of white powder and one plastic vial of white powder to Whipple’s alleged white crystalline powder could simply not be normal procedure, nor has the Government shown it is part of their regular specimen custody procedures.
No presumption of regularity is applicable in the present case for Agent Loveless.
The majority opinion finally asserts that the importance of the discrepancies in this case are minimal because the chemist Buer tested each small plastic bag and each contained cocaine. (The plastic vial and the wax packet were also tested and found to contain cocaine.) This conclusion is based on the supposition that the unaccounted for containers were simply added to the original containers. It is possible, without testimony on this issue, that an entirely new *299collection of six small plastic bags was added to the opaque shopping bag along with the extra bags and the plastic vial. We cannot know unless the original small plastic bags were identified (which they were not), or the substance itself was marked or possessed individual characteristics (which it was not) or Loveless testified as to what happened during his period of custody (which he did not). I do not believe the majority’s rationale on this part is persuasive in the least. Cf. United States v. Daughtry, supra.
In conclusion, under the facts and circumstances of this case, I cannot agree that the Government has sufficiently shown that Whipple’s white crystalline powder if tested by Buer was in a substantially unchanged condition. The nature of the cocaine in this case is fungible because it was a white powder substance and because it was packaged in indistinguishable sealed small clear plastic bags. The circumstances of its preservation and custody are highly suspect since the large shopping bag containing these bags was not sealed until someone with the initials CEL placed it in a sealed evidence envelope. The probability of intermeddling or tampering is great since at the very least it is clear that two plastic bags and one plastic vial were added to Whipple’s alleged white crystalline powder. See United States v. Brown, 482 F.2d 1226, 1228 (8th Cir. 1973). Prosecution exhibit 10 and the testimony of the chemist Buer also should not have been admitted on this ground.
I would reverse the decision of the court below and set aside the findings of guilty and the sentence.
. This court has not adopted the position of the District of Columbia Circuit in United States v. Coleman (D.C.Cir. July 11, 1980), that such entries by police officers are not reports prepared for purposes of prosecution. See United States v. Nault, 4 M.J. 318, 320 n. 7 (C.M.A.1978).