(dissenting):
At the outset of the court-martial, before any evidence was presented or any testimony taken, appellant moved for production of a civilian expert witness at government expense. According to the defense proffer, the expert would testify that the technicians who worked at the Navy drug laboratory failed to follow their own standard operating procedures (SOP) in certain respects for conducting the gas chromatography/mass spectrometry test on appellant’s urine sample. Accordingly, the expert would challenge the validity of the Navy lab's test results, which indicated that the appellant’s sample contained cocaine. Based on test documentation, the civilian expert would not have reported positive findings.
Allegedly, his conclusion was buttressed by a retest of another portion of that same urine sample, apparently conducted by a civilian laboratory not connected with the defense expert. The results of that test, it was contended, were so low that the sample could not have been positive when the Navy laboratory tested it.1 No evidence of *440the retest or its results was introduced at trial, and none is attached to the record.
According to a government chemist’s testimony, cocaine metabolite decomposes over time, and the rate of decomposition depends upon the PH of the urine and the temperature of storage. Neither of these factors is in evidence, and it is not represented that the defense expert had access to them.
By simple comparison of the laboratory’s standard operating procedures and documentation, the military judge could determine that the prescribed quantities, settings, and tolerances, etc., which had been specifically cited in the proffer, were, in fact, consistent. Accordingly, the judge found that “there is no evidence before this court from which to conclude that the procedures of the Standard Operating Procedure were violated.” It may also be noted that there was no evidence or proffer that the standard procedures, when followed, produced invalid results.
During opening argument, defense counsel essentially conceded that the prescribed laboratory procedures had been followed. He took the position, however, that even greater accuracies might be obtained if still more stringent standards were utilized.2 His thesis failed to take into consideration the fact that the cut-off standards are set much higher than necessary for the very reason that variations in testing do occur within a fairly narrow range. Thus, when the actual nanogram count is close to the predetermined cut-off level, it is entirely possible that a given sample may indicate slightly to the positive one time and slightly to the negative at another time. The difference is not that one test quantity contains cocaine and the other does not, for clearly both do. The difference is that sometimes, due to administrative happenstance, one servicemember is subject to court-martial, and another receives a windfall.
During the prosecution’s case-in-chief, the government chemist explained the lab testing procedures and interpreted the findings. The defense undertook a vigorous cross-examination. Not once, however, *441during the lengthy querying, did defense counsel confront the witness with an alleged departure from the SOP (which is attached to the record as a prosecution exhibit). Moreover, in response to the original defense proffer, the government chemist conducted several controlled laboratory experiments in which he varied the specific parameters cited in the defense proffer. The results showed insignificant effect on “quantification,” i.e., nanograms per milliliter. Further, the defense did not renew its request for its expert after the Government’s case-in-chief.
This is not a case in which the defense requested an expert to assist it in the preparation of its case. See Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). If it had, it likely would not have been provided a high-priced civilian if a government expert had been available. The proffer that the SOP had been violated was shown to be incorrect and was abandoned. The claim that higher parameter standards would produce significantly more accurate results was disproven, and no basis for rebuttal was alleged. Finally, no foundation was indicated for the assertion that the retest tended to disprove the nanogram count of the initial test. All that was left was the naked claim that the civilian expert would not have reported positive findings based on the Navy lab’s documentation.
Like the military judge, I am of the opinion that this proffer was insufficient to establish the relevance or helpfulness of the witness. See Mil.R.Evid. 401, 402, and 702, Manual for Courts-Martial, United States, 1984.
I would affirm the decision of the United States Navy-Marine Corps Court of Military Review.
. As found by the judge, the initial gas chromatography/mass spectrometry test was conducted *440on March 27, 1985, and the civilian retest was run “[o]n or after 6 June 1985,” a period exceeding 2 months. These dates were not challenged at trial by the defense and they have not been challenged before us. Trial defense counsel’s argument as to the significance of the retest includes the following:
The Government also substantially misstates Dr. Pitts’ [the expert] testimony with respect to the decomposition of the sample in question. The Government states that Dr. Pitts’ testimony will be that the decomposition occurring in Petty Officer Van Horn’s sample was not unusual. The. implication being that his testimony would be that the fall in measurement from the 347 nanograms per milliliter measured in the first test to the below the 200 nanogram per milliliter measured in the retest could be solely attributable to decomposition. Such is totally incorrect. Dr. Pitts will testify it is not unusual for a sample to drop 147 nanograms in 25 days as a result of decomposition. However, he will testify that a sample testing at 347 nanograms per milliliter, such as the accused’s, is unlikely to fall below 200 nanograms per milliliter in 25 days, solely as the result of decomposition. (Emphasis added.)
. Defense counsel’s argument was as follows: The defense also intends to show that the lab did not follow the tenor of the Standard Operating Procedures in allowing noise to register on the 303 channel during the testing and by its failure to set the sensitivity level high enough to ensure accuracy in the testing procedures. The Government, it is expected, will attempt to show that the SOP was technically followed. But it is our position that when someone’s life is involved that the lab should not walk a fine line between what is technically correct and what would result in an inaccurate result, but that the most accurate result possible should be obtained. The defense contends that such was not done is this instance. What we’re dealing with here is a sample that tested 347, not 500. Such was only 47 nanograms above the 300 nanogram cut off level. When it is this close, the inaccuracies could have made the difference between a positive and a negative.
In summation, it is the defense’s position that due to mishaps occurring [at] the lab, possibilities of contamination arising therefrom and the failure of the lab personnel to investigate the cause of the noise registering on the 303 channel, and to set the sensitivity level high enough to ensure an accurate quantification, that some doubt exists as to whether or not Petty Officer Van Horn’s sample was above the 300 nanogram cut off level____