(dissenting):
The manner in which we have chosen to resolve the issue of the potential use of “negative” urinalysis test results as rebuttal evidence in this case causes me great concern. I view the resolution of this issue as an equation having two distinct parts. First, is there a valid legal basis for use of the proffered rebuttal evidence under any circumstances in the case at hand? Mil.R.Evid. 401, 402. And second, if so, then when does the evidence become admissible? See e.g., Mil.R.Evid. 403, 404, 405, and 608. Senior Judge Lewis by-passes the first part of this equation and then relies (quite correctly) upon a waiver rule announced by the Supreme Court in Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) to resolve the issue. However, I believe that the first part of the equation must be addressed before reaching the second part.
I believe there is no doubt but that an accused person’s rights to testify and present other evidence on his or her behalf are fundamental and substantial trial rights. If there is a valid basis for use of impeachment or rebuttal evidence as a trial unfolds, and for tactical reasons the accused decides to waive those rights in order to keep such evidence from coming before the court, then so be it. Id. If there is no valid basis for the introduction of such evidence, then a rule that forces an accused to consider giving up those rights in light thereof offends my sense of justice.
*582The question of the validity or scientific basis for use of the “negative” urinalysis test results in this case was fully developed and litigated at trial. We have a complete record in that regard. Therefore, the concerns expressed by the Supreme Court in Luce are not present. I would hold that the military judge’s determination that the test data reflected evidence of some degree of cocaine activity is a matter preserved for appellate review and would test that ruling for abuse of discretion. United States v. Cofield, 11 M.J. 422 (C.M.A.1981);1 United States v. Johnson, 20 M.J. 610 (A.F.C.M.R.1985). If abuse of discretion is found, then the question is whether or not “the error materially prejudices the substantial rights of the accused.” Article 59(a), UCMJ, 10 U.S.C. § 859(a). See also Mil.R.Evid. 103(d).
I do not believe this approach would be inconsistent with the holding in Luce. There is nothing in that opinion that would lead me to conclude other than that the evidence the Government possessed was a properly documented prior conviction which fully met the procedural requirements for admissibility under Federal Rule of Evidence 609, assuming the defendant took the stand and “opened the door.” Thus, the first part of the equation had already been satisfied. The issue addressed by the Court in Luce involved the second part.
Assuming a clean chain of custody and a showing that proper testing procedures were followed by the laboratory, a denial of wrongful use coupled with evidence regarding truthfulness and good character is often the only defense available in drug urinalysis cases. Character evidence alone in such cases might generate reasonable doubt in a factfinder’s mind. See United States v. Vandelinder, 20 M.J. 41, 47 (C.M.A.1985); United States v. Farrar, 25 M.J. 856, 857 (A.F.C.M.R.1988). The accused in these cases are often noncommissioned officers with otherwise excellent service records stretching over a number of years (the appellant here has over sixteen years service). If found guilty, a punitive discharge will quite likely be included in the court’s sentence.2 They, as well as their families, have a lot at stake. I also note that under the DOD drug urinalysis program specimens that test negative (drug not present in a quantity at or above the prescribed cut-off level) are not preserved. Thus, there is no opportunity for retesting.3 Cf. United States v. Kern, 22 M.J. 49 (C.M.A.1986); United States v. Frost, 19 M.J. 509 (A.F.C.M.R.1984), aff'd 22 M.J. 386 (C.M.A.1986). The underlying ruling that there is a valid basis for use of “negative” urinalysis test results as rebuttal evidence, in my judgment, must be subject to appellate review.
. In the Welch case cited by Senior Judge Lewis the Court of Military Appeals’ reference to Luce was limited to "the peculiar circumstances of this [the Welch] case” (25 M.J. 23, 26), and nowhere in that opinion did the Court make reference to its prior holding in Cofield.
. Data from the Air Force’s military justice data system (See Air Force Manual 111-651, Automated Military Justice Analysis and Management System (19 Dec 1980)), reveal that over the past two years almost 80% of the noncommissioned officers convicted only of wrongful use of drugs based upon urinalysis test results had a punitive discharge included in the sentence as adjudged by the trial court.
. In the case sub judice, the Government’s own expert testified that he would "probably not” stake his professional reputation on his opinion that there was between 50 and 100 nanograms per milliliter of the cocaine metabolite present in the sample in question, and that even in a clinical setting radioimmunoassy tests are run two or three times.