(concurring):
On July 23, 1986, appellant was found guilty of the offense of wrongful use of marijuana, in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a. Defense counsel’s basic argument to the members was that erroneous testing procedures led to a positive reading of appellant’s urine sample. There was no direct evidence presented that appellant in any sense unknowingly used marijuana; instead the suggestion was that he did not use marijuana at all.
Chief Judge Everett notes that prior to trial the defense requested an instruction that knowledge was an element of this drug offense. See generally Art. 51(c), UCMJ, 10 U.S.C. § 851(c). He also construes the remaining defense requests as seeking instructions that two types of knowledge are necessary for conviction of wrongful use of marijuana under Article 112a. The first type of knowledge is an awareness of the presence of the drug; the second is knowledge of the nature of the drug. He approves of these requests in lieu of the standard-type instruction given by the judge,1 but he concludes that failure to give such instructions in the present case was harmless error. See generally Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). Cf. Hoover v. Garfield Heights Municipal Court, 802 F.2d 168, 177-78 (6th Cir.1986). I agree.
Drug offenses are regulatory offenses which by their nature afford great discretion to the legislature in their definition. See United States v. Freed, 401 U.S. 601, 609-10, 91 S.Ct. 1112, 1118-19, 28 L.Ed.2d 356 (1971). The wording of the various Manuals for Courts-Martial explaining military drug offenses has particularly troubled this Court over the years. See United States v. Grier, 6 U.S.C.M.A. 218, 225, 19 C.M.R. 344, 351 (1955). Cf. Parker v. Levy, 417 U.S. 733, 753-54, 94 S.Ct. 2547, 2560-61, 41 L.Ed.2d 439 (1974). As a result, some ambivalence on the status of knowledge as an element or affirmative defense in military drug cases appeared in the earlier decisions of this Court. Consequently, the practice developed of refusing to reverse convictions for failure to instruct on knowledge unless evidence raising the issue of a lack of knowledge had been presented at a court-martial. See United States v. Grier, supra; United States v. Hughes, 5 U.S.C.M.A. 374, 377-78, 17 C.M.R. 374, 377-78 (1954); see generally United States v. Wallace, 2 U.S.C.M.A. 595, 599,10 C.M.R. 93, 97 (1953). Cf United States v. Lampkins, 4 U.S.C.M.A. 31,15 C.M.R. 31 (1954). Under this practice, appellant would not be entitled to relief. Art. 59(a), UCMJ, 10 U.S.C. § 859(a).
*258The perpetuation of this appellate practice and ambiguous Manual provisions have engendered a persistent doubt as to the status of knowledge as an element of the offense in drug cases. See United States v. Yates, 16 C.M.R. 629, 638-39 (A.F.B.R.), pet. denied, 16 C.M.R. 292 (1954). Recent pronouncements of this Court in United States v. Ford, 23 M.J. 331 (C.M.A.1987), and United States v. Harper, 22 M.J. 157 (C.M.A.1986), however, have made clear that knowledge is an element of these offenses. See para. 213# (2), Manual for Courts-Martial, United States, 1969 (Revised edition) (C. 7). Today, application of the test for harmless error provided in Rose v. Clark, supra, for failure to so instruct the members should eliminate any lingering question concerning Congress’ intent in this matter.
As for matters of substance, the intimate relationship between the offenses of possession of a drug and use of a drug is well established as a matter of military law. Possession of a drug without proper authorization was expressly prohibited by paragraph 4, General Orders No. 25, War Department, March 11, 1918. Later, it was held that use of a drug was a form of possession prohibited by this order because it constituted control of the drug with the right of disposal. United States v. Barre-to, 3 B.R. (ETO) 137, 143-44 (1943). See generally J. Snedeker, Military Justice under the Uniform Code 907 (1953).We note that no contrary explanation of the use of a drug has ever been provided in the Manual for Courts-Martial. See App. 4, Form Specification 182, Manual for Courts-Martial, U.S. Air Forces, 1949; App. 6c, Form Specification 137, Manual for Courts-Martial, United States, 1951; para. 213#, 1969 Manual, supra (C. 7); para. 37, Part IV, Manual for Courts-Martial, United States, 1984. Accordingly, the Chief Judge is amply justified in considering possession principles in addressing the elements of a use offense. See United States v. Crawford, 6 U.S.C.M.A. 517, 519, 20 C.M.R. 233, 235 (1955); United States v. Grier, supra at 221, 19 C.M.R. at 347.
Possession is defined in Barreto as follows:
The “possession” prohibited by the General Order means not only a mere physical holding, but also includes control of the thing possessed with the right to dispose of it in any manner the possessor sees fit (49 C.J., sec. 1, p. 1094); Colbaugh v. United States, 15 Fed (2nd) 929, 931).
3 B.R. (ETO)-at 143-44. Yet, despite this reliance on the general legal meaning of the term and federal practice, no particular explanation of possession was provided in the Manuals for Courts-Martial until 1982, when Change 7, 1969 Manual, supra, became effective. See United States v. Major, 33 B.R. (ETO) 47, 49 (1945). Accordingly, prior to that time, some doubt may have existed as to the type of possession which was sufficient for conviction of this offense under Article 134, UCMJ, 10 U.S.C. § 934, and which could serve as a basis for the permissive inference of wrongfulness found in paragraph 213a, 1951 Manual, supra. See United States v. Yates, supra. However, after 1982, no serious argument can be made that possession for either purpose can be found to have occurred without knowledge of the presence of the substance possessed. See para. 213# (2), 1969 Manual, supra (C. 7).
The federal statute prohibiting simple possession makes it unlawful “knowingly or intentionally to possess a controlled substance.” 21 U.S.C. § 844(a). It requires proof that the guilty person “knew the illicit nature of the substance he possessed and he purposely possessed such substance.” United States v. Holloway, 744 F. 2d 527, 532 (6th Cir.1984). See generally United States v. Jewell, 532 F. 2d 697 (9th Cir.) (en banc), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976). Prior to enactment of that statute, knowledge of the presence of the drug possessed at the very least was included in possession as a matter of federal law even absent the above noted statutory language. Ezzard v. United States, 7 F. 2d 808, 810 (8th Cir.1925). See Grantello v. United States, 3 F. 2d 117, 118 (8th Cir.1924); Pierriero v. United States, 271 F. 912, 915-16 (4th Cir. 1921) (Webb, J., dissenting); Sorenson v. *259United States, 168 F. 785, 798-99 (8th Cir. 1909). See generally United States v. Freed, supra 401 U.S. at 607, 91 S.Ct. at 1117; Baender v. Barnett, 255 U.S. 224, 41 S.Ct. 271, 65 L.Ed. 597 (1921). Cf. United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922). Pitta v. United States, 164 F.2d 601, 602 (9th Cir.1947), a case relied on in United States v. Yates, supra, is not inconsistent with these decisions. This precedent further supports the Chief Judge’s opinion.
Accordingly, I agree with my Learned Brother. The dual-prong approach to the question of knowledge required to be proven in drug possession cases is well recognized.2 See F. Bailey and H. Rothblatt, Handling Narcotic and Drug Cases 42 (1972); Anno.: Narcotic-Possession-What Constitutes, 91 A.L.R. 2d 810, 821 (1963); Comments: Katz, Possession of Narcotic Drugs Under State and Federal Statutes, 25 U.Miami L.Rev. 306, 310 (1971); 25 Am Jur 2d Drugs, Narcotics and Poisons § 22 at 298-99. Moreover, its applicability to drug-use cases is appropriate in light of the language of Article 112a, the decisions of this Court cited by the Chief Judge, and the Manual provisions promulgated since 1982. See para. 21Sg(2) and (5), 1969 Manual, supra (C. 7). See also para. 2136, 1969 Manual, supra (original version). However, some additional comment is warranted so as to reconcile the principal opinion with previous decisions of this Court in United States v. Ford and United States v. Harper, both supra, and on the impact today’s decision may have on the permissive inference of wrongfulness found in paragraph 37c (5), Part IV, 1984 Manual, supra.
It first must be noted that neither Ford nor Harper particularly mentioned either of the two types of knowledge discussed by the Chief Judge in his opinion. These decisions speak in general terms of knowledge (United States v. Harper, 22 M.J. at 162); or simply the knowing use of drugs (United States v. Ford, 23 M.J. at 336). However, such a generally phrased knowledge requirement for military drug-use offenses logically and necessarily encompasses the two more specific types of knowledge noted by the Chief Judge. See United States v. Fears, 11 U.S.C.M.A. 584, 589-90, 29 C.M.R. 400, 405-06 (1960). In fact, it should be pointed out that both Greer and Greenwood were cited in Harper with respect to an explanation of use (22 M.J. at 162), and in Ford with reference to the required knowledge (23 M.J. at 336). Accordingly, the more precise articulation of the knowledge requirement by the Chief Judge wreaks no havoc with established precedent. See para. 2136, 1969 Manual, supra.
Turning to the permissive inference of wrongfulness including knowledge, its operation must be rephrased to account for the more particular articulation of the source of these knowledge requirements.3 In accordance with the principal opinion, the knowledge to be inferred for purposes of wrongfulness is knowledge of the nature of the contraband substance used. Cf. United States v. Ford, supra. For the reasons stated in Ford (23 M.J. at 337), this type of knowledge can be rationally inferred from a use accompanied by knowledge of the presence of the drug used. As usual, the conscious use of a drug can be shown by the presence in the body of the drug as shown by scientific evidence, proof that the drug is not naturally produced by the body, and proof that it is only produced by the controlled substance. See United States v. Harper, supra at 161. The bottom line is that the same circumstantial evidence may give rise to the same knowledge broken down in its component parts.
. See principal op. at 248-249.
. This approach, however, is not universal. See State v. Morris, 331 N.W.2d 48, 54 (N.D.1983) (rejects both types of knowledge as elements of the statutory offense of possession); State v. Cleppe, 96 Wash.2d 373, 635 P.2d 435 (1981) (suggests some type of lack of knowledge may be raised as an affirmative defense).
. Harper and Ford also attribute this general knowledge requirement in military drug cases to the word wrongful. United States v. Fears, 11 U.S.C.M.A. 584, 589-90, 29 C.M.R. 400, 405-06 (1960). See generally R. Perkins and R. Boyce, Criminal Law 862 (3d ed. 1982). See People v. Gory, 28 Cal.2d 450, 170 P.2d 433, 438 (1946), cited in United States v. Grier, 6 U.S.C.M.A. 218, 221, 19 C.M.R. 344, 347 (1955).