dissenting:
Appellant moved, at trial, for “a hearing to determine whether or not a fair racial composition exists” on the panel of officers selected to hear his case. In his proffer, made both verbally and in writing, he offered the following: (1) accused is black; (2) no black officers were detailed to sit as *602members at his court-martial;1 (3) defense counsel had been informed that there were no black officer alternates available for the trial of the case; (4) the Chief of Criminal Law had informed counsel that no black officers had been nominated for service in the instant court-martial by any subordinate command in the Military District of Washington (M.D.W.); (5) counsel had been informed by the “Office of Equal Opportunity” that over ten percent of the officers in the Army were black and that the percentage of black officers assigned to M.D. W. was about the same; (6) on 16 October 1986 the trial counsel had informed the defense that “she understood that a black officer would be available and that efforts were being made to procure the services of a black officer for this Court.”
In support of his proffer trial defense counsel argued:
Once we have shown what we have shown, then it is incumbent upon the Government to go forward with an affirmative showing of the evidence as to how this happened, why it happened, and what could have been done to avoid the problem. The remedy here is not dismissal. We can’t seek a dismissal. I don’t think the Code provides for that. The only remedy is a stay.
Trial counsel responded that the defense was required to make an offer of proof “that improper methods were used in ... the selection of members” and that “[i]t’s for the defense to make some affirmative proof that there was a conscious choice to exclude blacks.” The military judge ruled as follows:
I find that the offer made by the defense to show improper selection of court members is insufficient to entitle them to a hearing as would be provided under Rule For Courts-Martial 912(b)(2).2 The defense has failed to show that the Convening Authority’s court member selection procedure violated Article 25 by systematically excluding black officers. I further find that the defense has not shown an offer of proof that the court-martial panel selected was selected under a practice providing the opportunity for discrimination. As observed in the case of The United States versus Credit, which was cited 2 M.J. 631, an Air Force Court of Military Review case, 1976, “Neither the Constitution of the United States nor the Uniform Code of Military Justice requires that every economic, racial or ethnic class, or pérsons of low ranking (sic) grades, be appointed to a military jury ...” to the contrary, “... the law provides that only significant and identifiable groups not be systematically excluded from the jury selection procedure.” Therefore the defense motion for appropriate relief is denied.
*603Appellant now asserts that “the military judge erred in refusing to conduct a hearing [and to allow him to present evidence] concerning the racial composition of the court-martial nominees.”
I
Rule for Courts-Martial 912(b)(2) requires a moving party, when challenging the selection of members, to make an offer of proof “which, if true, would constitute improper selection.” Upon meeting that requirement, the moving party is entitled to present evidence. In this case, the military judge, in denying a hearing, stated that the defense had failed to aver that (1) the convening authority’s selection procedure had systematically excluded black officers and (2) the court-martial panel was selected under a practice providing the opportunity for discrimination. I believe that both the military judge at trial, as well as the majority on appeal, applied improperly restrictive standards previously rejected by the United States Supreme Court. Within a discretionary system of court member selection that provides opportunity for discrimination,3 I find that appellant’s offer would, if proved, have established a prima facie 4 case of systematic exclusion of black officers.
II
In Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972), the petitioner alleged that blacks were included on the grand jury list and venire in only token numbers and successfully argued that the grand jury5 was “impaneled from a venire made up contrary to the requirements of the Equal Protection Clause.” Id. at 626-27, 92 S.Ct. at 1223. Alexander demonstrated that: (1) 21.06% of the veniremen pool were black; (2) the jury commission consisted of five members, all white; (3) the commission compiled a list of names from various sources (telephone directory, voter rolls, personal knowledge, etc.) and sent questionnaires to the people on the list; (4) the questionnaires included a space to indicate race; (5) 13.76% of the questionnaires returned were from blacks; (6) the commissioners culled the list to 2000, placed them on a table and randomly selected 400 people of which 6.75% were black; and (7) on Alexander’s grand jury venire, one of the twenty persons drawn was black, but none of the twelve people on the grand jury that indicted him was black. Alexander argued that the “substantial disparity between the proportion of blacks chosen for jury duty and the proportion of blacks in the eligible population raises a strong inference that racial discrimination and not chance ... produced this result____” Id. at 630, 92 S.Ct. at 1225.
The court, in finding a prima facie case of invidious racial discrimination, stated in part:
This Court has never announced mathematical standards for the demonstration of “systematic” exclusion of blacks but has, rather, emphasized that a factual inquiry is necessary in each case that takes into account all possible explanatory factors. The progressive decimation of potential Negro grand jurors is indeed striking here, but we do not rest our conclusion that petitioner has demonstrated a prima facie case of invidious racial discrimination on statistical im*604probability alone, for the selection procedures themselves are not racially neutral. The racial designation on both the questionnaire and the information card provided a clear and easy opportunity for racial discrimination.
Id. at 630, 92 S.Ct. at 1225 (emphasis added). The proffer made by the appellant in this case is, if anything, stronger than the allegations in Alexander: ten percent of the eligible pool was black and no black officers’ names were submitted by selecting officials who, as noted supra, either personally knew, or had access to information on, the nominee’s race. There was here no “progressive decimation” by an occasionally random process; there was an averment of a complete exclusion ab initio in a process that precludes random selection. See Article 25(d)(2), UCMJ (convening authority must detail “such members ... as in his opinion are best qualified”); R.C.M. 502(a)(1); United States v. Ryan, 5 M.J. 97 (C.M.A.1978). Alexander establishes that overt statements of discriminatory intent or purpose are not required. Short of such a showing, I can imagine little else that can be shown beyond what was proffered.6 As stated in Batson:
Since the ultimate issue is whether the State has discriminated in selecting the defendant’s venire ... the defendant may establish a prima facie case “in other ways than by evidence of long-continued unexplained absence” of members of his race “from many panels.” Cassell v. Texas, 339 U.S. 282, 290, 70 S.Ct. 629, 94 L. Ed. 839 (1950) (plurality opinion). In cases involving the venire, this Court has found a prima facie case on proof that members of the defendant’s race were substantially underrepresented on the venire from which his jury was drawn, and that the venire was selected under a practice providing “the opportunity for discrimination.” Whitus v. Georgia, 385 U.S., at 552, 87 S.Ct. 643 [647]; see Castaneda v. Partida, supra, [430 U.S.] at 494, 97 S.Ct. 1272 [1280]; Washington v. Davis, supra, [426 U.S.] at 241, 96 S.Ct. 2040 [2048]; Alexander v. Louisiana, supra, [405 U.S.] at 629-631, 92 S.Ct. 1221 [1224-26]. This combination of factors raises the necessary inference of purposeful discrimination because the Court has declined to attribute to chance the absence of black citizens on a particular jury array where the selection mechanism is subject to abuse. When circumstances suggest the need, the trial court must undertake a “factual inquiry” that “takes into account all possible explanatory factors” in the particular case. Alexander v. Louisiana, supra, [405 U.S.] at 630 [92 S.Ct. at 1225].
Batson, 476 U.S. at 95, 106 S.Ct. at 1722 (emphasis added). Clearly the offer here contains the first element of proof, i.e., substantial minority underrepresentation on the “venire from which the jury was drawn.”
Ill
The other factor in the formula for raising an inference of purposeful discrimination is that the venire selection method “provided an opportunity for discrimination.” It cannot rationally be contended that the panel selection process in the military does not provide the opportunity for discrimination. As previously noted the process by which court members are nominated and selected is not random but is, rather, a by-name selection during which the race of the prospective member is ei*605ther known or easily ascertained. Additionally the military justice system has, in the past, demonstrated its potential for abuse.7 See, e.g., United States v. Thomas, 22 M.J. 388 (C.M.A.1986), cert, denied, 479 U.S. 1085, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987) (unlawful command influence); United States v. McClain, supra (exclusion or replacement of junior members “in order to obtain a court membership less disposed to lenient sentences”); United States v. Brice, 19 M.J. 170 (C.M.A.1985) (during court-martial on drug offenses, commanding general/convening authority ordered all officers, including panel members, to attend an address by the Commandant of the Marine Corps which addressed drug problem in military); United States v. Miller, 19 M.J. 159 (C.M.A.1985) (accused’s company commander communicated his opinion to two fellow officers who sat on panel that accused should receive stem punishment); United States v. McCarthy, 2 M.J. 26, 29 n. 3 (C.M.A.1976) (“court members, hand-picked by the convening authority and of which only four of a required five ordinarily must vote to convict ... are a far cry from the jury scheme which the Supreme Court has found to be constitutionally mandated in criminal trials in both federal and state court systems”). The system clearly provides an opportunity to discriminate and has been previously abused. Thus, the appellant’s proffer was sufficient.
IV
Reported military cases prohibit discrimination on the basis of improper criteria. See United States v. Daigle, 1 M.J. 139 (C.M.A.1975) (non-selection of warrant officers and lieutenants); United States v. Smith, 18 M.J. 704 (A.C.M.R.), petition denied, 19 M.J. 215 (C.M.A.1984) (deliberate inclusion of females as court-martial member was proper as opposed to deliberate exclusion of a certain class of person which is a violation of the Equal Protection Clause). The military judge in this case relied on the holding of the Air Force Court of Military Review in United States v. Credit, 2 M.J. 631, 638 (A.F.C.M.R.1976). There, the court held, citing Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), that a claim “that the composition of the court-martial is constitutionally infirm because there were no Negro ... officers included on the panel that was appointed” was without merit. The Credit court had before it a verbal assertion that only one black officer was nominated by the subordinate commanders. The court was correct in stating that an absence of blacks on a court-martial panel does not itself establish a constitutional infirmity. There is no constitutional requirement for minority representation at a court-martial. Nor is a law, policy, or procedure “unconstitutional solely because it has a racially disproportionate impact.” Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). In this case, however, the defense proffer was considerably more and R.C.M. 912 procedures were available. Accordingly I believe that, under the facts of this case, Credit does not apply. Credit predates R.C.M. 912 which provides the defense a hearing and opportunity to present evidence upon adequate proffer. Further, as noted supra, the Air Force court relied upon Swain while we have the benefit of Supreme Court post-Swain rulings which alter and expand that case’s view of challenges based on racial discrimination. See Batson, supra; Davis, supra (accused may make out prima facie case by showing that totality of circumstances in a single case gives rise to inference of discriminatory purpose; burden shifts to government to rebut). We are presented here with an assertion that, based upon appellant’s offer of proof, the military judge was required to conduct a hearing and allow presentation of evidence by appellant. I find that, under the facts of this case, a hearing was required and that appellant was denied the opportunity to present evidence and fully develop the record. I respectfully dissent.
*606I would return the record of trial to the Judge Advocate General for remand to the same or a different convening authority for a hearing pursuant to R.C.M. 912(b) allowing appellant to present the evidence proffered at trial and further litigation of that issue if required.
. Ten officers were initially detailed to sit as members at appellant’s court-martial. Three of the ten were excused by the convening authority and an additional three were detailed.
. Although defense counsel’s motion for a hearing was not clearly stated, the military judge understood, and I understand the motion to be one requesting that he be entitled to present the information contained in his offer of proof as evidence at a hearing under the provisions of the Manual for Courts-Martial. The majority attempts to establish new proof and procedural requirements in defining a “proper offer of proof." Nothing within the Rules for Court-Martial or the Manual for Courts-Martial requires that an offer of proof be more than a statement outlining that which the moving party intends to prove. Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 912 [hereinafter M.C.M.1984 or Manual and R.C.M. respectively] provides:
(b) Challenge of selection of members.
(X) Motion. Before the examination of members under subsection (d) of this rule begins, or at the next session after a party discovered or could have discovered by the exercise of diligence, the grounds therefor, whichever is earlier, that party may move to stay the proceedings on the ground that members were selected improperly.
(2) Procedure. Upon a motion under subsection (b)(1) of this rule containing an offer of proof of matters which, if true, would constitute improper selection of members, the moving party shall be entitled to present evidence, including any written materials considered by the convening authority in selecting the members. Any other party may also present evidence on the matter. If the military judge determines that the members have been selected improperly, the military judge shall stay any proceedings requiring the presence of members until members are properly selected.
. The record does not establish the method by which officers were nominated by subordinate units within M.D.W. for service as court-members. Normal military practice, which I will assume was used in some variation in this case, entails a by-name selection of officers by subordinate commanders of officers they deem best qualified. Nominating officers personally know or review the personnel files of the nominees. The opportunity to discriminate is clearly present. I recognize that appellant made no offer averring that the selection process was not racially neutral or that the process provided a clear opportunity to discriminate. Because the nature of the selection process is common knowledge within the Army, I find that such an averment is unnecessary.
. The establishment of a prima facie case would shift the burden to the government to prove that the selection process was not discriminatory. See Batson v. Kentucky, 476 U.S. 79, 94, 106 S.Ct. 1712, 1721-22, 90 L.Ed.2d 69 (1986).
. While this case does not involve a petit jury, the principles applied are essentially the same. See Alexander v. Louisiana, 405 U.S. at 626 n. 3, 92 S.Ct. at 1223 n. 3.
. The majority cites United States v. McClain, 22 M. J. 124 (C.M.A.1986) as delineating the standard by which an allegation of systematic exclusion of a particular groups is tested and states that McClain dictates "that an intentional exclusion of a particular group from panel service must be shown.” In McClain the Court of Military Appeals held that systematic exclusion of enlisted personnel below the rank of E-7 and of junior officers as members of court-martial panels in order to obtain more severe sentences violated Articles 25 and 37 of the Uniform Code of Military Justice, 10 U.S.C. § 837. The court did not address allegations of discrimination based on race except to cite and comparison-cite several United States Supreme Court cases including Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977). The majority's reliance upon McClain as establishing a military standard requiring a showing of "intentional exclusion” in cases of racial discrimination is overbroad and disregards clear guidance from the United States Supreme Court.
. Even absent discriminatory intent, a total absence within M.D.W. of black officer nominees for court member duties is, if true, an indication of an insensitivity with regard to "public confidence in the fairness of our system" that requires attention.