(concurring):
As a starting point to resolving the issues raised in this appeal, I note my disagreement as to the majority’s conclusion that any errors involved in the admission of the chain-of-custody documents in this case were not prejudicial to appellant. The mere failure of an accused to deny the chemical nature of the substance was marihuana does not relieve the Government of its burden of proof. See United States v. Jessen, 12 M.J. 122 (C.M.A.1981) (Fletcher, J., dissenting). Moreover, my opinion in United States v. White, 9 M.J. 168 (C.M.A.1980), provides no support for the finding of no prejudice by the majority on this basis.' In that case, testimony from the accused and other witnesses at trial appeared in the record to corroborate the introduced extrajudicial statement of the accused admitting the chemical nature of the substance. Here, appellant simply admitted that he distributed to Hayes a bag belonging to his bunkmate without being fully aware of the nature of the bag’s contents.
Turning to the remainder of the principal opinion, I feel constrained for purposes of clarity to approach this case in a somewhat different fashion. First, I will address questions concerning the admissibility of prosecution exhibits 2 and 4, the alleged marihuana purportedly received and seized from appellant. Second, I will address the challenges raised to the admission of prosecution exhibit 8, a laboratory report purporting to establish the chemical nature of the substances contained in the above-mentioned exhibits. These issues are resolved, accepting as the majority does that prosecution exhibits 3 and 5 were incompetent hearsay and inadmissible to show the custody of alleged drugs by persons who did not testify in person at trial.
The first issue of importance in this case concerns the admissibility of prosecution exhibit 2, a plastic bag containing three smaller marked plastic bags and a second separate plastic bag containing a quantity of green vegetable matter and prosecution exhibit 4, a plastic bag containing nine smaller marked plastic bags and a separate plastic bag containing a quantity of green vegetable matter. The relevance of this government evidence hinges on a showing by the Government that these materials were the ones earlier received from appellant and that they were in a substantially unaltered state. See United States v. Parker, 10 M.J. 415, 416-18 (C.M.A.1981); United States v. Courts, 9 M.J. 285, 293-99 (C.M.A.1980) (Fletcher, J., dissenting). The chain-of-custody documents (prosecution exhibits 3 and 5), contain incompetent hearsay and are inadmissible to resolve these questions. United States v. Neutze, 7 M.J. 30 (C.M.A.1979).
The problem in this case is that all the government witnesses who testified as to their possession of the alleged drugs received from the appellant clearly indicated that the suspected marihuana was broken up into individual quantities and packaged in twelve plastic bags prior to its submission to the laboratory for examination. Jones, the evidence custodian, testified that when he received these materials back from the laboratory, the suspected marihuana was no longer in individual bags but was lumped together in two plastic bags and the marked plastic bags were separate.
The question before this Court is whether such a discrepancy in packaging prevents this material from being readily identifiable or provides a suggestion that the originally seized items were tampered with. See United States v. Courts, supra. On the question of identity of the offered evidence, Jones, the evidence custodian, testified that the marked bags were the same he sent to the laboratory and the lumped-together vegetable matter appeared to be the same substance and in the same amount as he sent to the laboratory. In addition, he testified that a laboratory report accompany*135ing these materials had the same case number as the one assigned to the materials he sent to the lab. See paras. 146a and 149c, Manual for Courts-Martial, United States, 1969 (Revised edition). This testimony is sufficient to establish the identity of the government evidence with that originally taken from appellant. See United States v. Madela, 12 M.J. 118 (C.M.A.1981) (Fletcher, J., concurring); United States v. Parker, supra.
A second problem concerns the question of whether the lumping together of the marihuana, rather than its maintenance in the original packages, provides a suggestion of tampering. I note at the outset that no person from the laboratory or the regulations concerning the practices of the laboratory explained on the record the reason for this discrepancy. Moreover, the military judge sustained an objection by the defense that Jones, as evidence custodian, could not explain this discrepancy without a proper foundation being laid as to his knowledge of what occurred at the laboratory.
I agree with the majority, however, that the military judge could have reasonably concluded that the materials taken from appellant were not tampered with at the laboratory. The discrepancy in this case is not as substantial as those revealed in the record in United States v. Courts, supra at 297-99 (Fletcher, J., dissenting). In addition, the Government amply demonstrated that the change in packaging of the seized substances occurred at the laboratory during the possession of the drugs by the chemists. Cf. United States v. Courts, supra at 298.1 Accordingly, the presumption of regularity applies and this question must be resolved against appellant.
I turn now to the issue concerning the qualification of this laboratory report as admissible hearsay under the business entry exception. See paragraph 144c, Manual, supra. It is true that no person from the laboratory testified as to the nature of the business of this laboratory and its regular practice to produce such reports. See para. 144c. Nevertheless, the military judge took judicial notice of service regulations which explained the business of the laboratory and its practice to issue laboratory reports similar to prosecution exhibit 8. See para. 147, Manual, supra. These regulations are attached to the record of trial. Special Agent Jones also testified as to his practice to submit requests for laboratory examination of suspected contraband to this laboratory and to receive laboratory reports similar to prosecution exhibit 8 in return. In view of this foundation, I agree that the Government properly qualified prosecution exhibit 8 as a regular business entry within the meaning of paragraph 144e, Manual, supra. Moreover, in view of these matters, I also agree that prosecution exhibit 8 was properly authenticated as a genuine laboratory report from this crime laboratory.
Finally, the question is raised whether the laboratory report was properly linked to prosecution exhibits 2 and 4, the quantities of vegetable matter. For the reasons stated in my concurring opinion in United States v. Madela, supra, I also resolve this issue against appellant.
. The evidence custodian, Jones, testified that he sent the materials received from appellant to the crime laboratory by registered mail and also picked up the package sent by registered mail from the crime laboratory to him. He also testified that the package he received contained the same materials which he originally sent to the crime laboratory and which were introduced as government evidence in the present case. I infer from this evidence that the crime laboratory had possession of these materials during this period, in the absence of evidence to the contrary. See para. 138a(2), Manual for Courts-Martial, United States, 1969 (Revised edition).