(concurring in the result):
I am not at this time ready to accept my brothers’ conclusion that wrongful involvement with an analog drug cannot presently be prosecuted under Article 112a of the Uniform Code unless the analog itself is listed on one of the schedules of Section 202 of the Controlled Substances Act (21 U.S.C. § 812). Our views differ as to the *676definition or scope of the term “derivative.”
Prohibited substances include “opium, heroin, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana and any compound or derivative of any such substance.” Article 112a(b)(l), UCMJ (emphasis added). Neither the Controlled Substances Act (where the term is also used), the Uniform Code, nor their legislative histories define this term. In my view, the definition Senior Judge Kastl would apply is perhaps too restrictive. The very case he cites, Reckitt & Colman, Ltd. v. Administrator, Drug Enforcement Administration, 788 F.2d 22 (D.C.Cir.1986), lends support to a broader definition. In that case, plaintiff chemical company sought to overturn the Administrator’s decision classifying buprenorphine as a narcotic under the Controlled Substances Act. It was contended that the classification rested on an improper determination that buprenorphine was a “derivative” of the opiate drug thebaine. The company argued that the Administrator applied an overly broad definition to the term “derivative.” The dispute centered around the extent of the chemical procedures necessary to make buprenorphine from thebaine (apparently a six or seven step process). The chemical company contended that one substance could be considered a derivative of another only if it can be produced in one or two chemical operations. The Administrator rejected this narrow “two-step” definition. He ruled that the agency would regard as a derivative of a drug “any substance (1) prepared from that drug, (2) which chemically resembles that drug, and (3) which has some of the adverse effects of that drug.” 788 F.2d at 24-25. He concluded “that ‘[t]o attribute great significance to the actual number of chemical steps is misleading’ — that what is important, rather, is the overall chemical similarity of the product to its parent.” Id. at 25. To support his reasoning, the Administrator relied upon the definition of “derivative” set forth in Van Nostrand’s Scientific Encyclopedia (5th ed. 1976):
A term used in organic chemistry to express the relation between certain known or hypothetical substances and the compound formed from them by simple chemical processes in which the nucleus or skeleton of the parent substance exists.
Id. All of the experts who testified at the administrative hearing agreed that “thebaine’s ‘skeleton’ is contained within that of buprenorphine but that an additional side chain of atoms is attached to this skeleton in buprenorphine.” Id. at 26. The Circuit Court upheld the Administrator’s decision, finding that his interpretation of the term “derivative” was reasonable and consistent with the purpose of the Controlled Substances Act.
I find one other point made by the Circuit Court in Reckitt & Colman, Ltd. to be of interest. The chemical company argued that since they were dealing with an undefined and potentially ambiguous statutory term, Congress must have intended that “derivative” be given a very narrow and precise definition. The Circuit Court stated:
This argument is misconceived. Congress has expressly restricted criminal liability to knowing or intentional violations of the Act, see, e.g., 21 U.S.C. Sec. 841 (1982), and so has obviated any potential due process problems implicated by a vague definition of statutory terms such as “derivative.”
Id. at 25, n. 3. To be punishable under article 112a, UCMJ, an accused must have knowledge of the contraband nature of the substance involved. MCM, Part IV, para. 37e(5) (1984). See United States v. Mance, 26 M.J. 244 (C.M.A.1987); United States v. King, 17 M.J. 1099 (A.F.C.M.R.1984).
As I read the record, we presently face a situation very similar to that faced by the Circuit Court in Reckitt & Colman, Ltd. A stipulation of expected testimony of Mr. Frank L. Sapoenza, a pharmacologist with the Drug Enforcement Administration, was presented to the court. In it he states that 3, 4 methylenedioxy amphetamine (MDA) has been a Schedule I controlled substance since passage of the Controlled Substances *677Act in 1970. “N-hydroxy-MDA is related to MDA, and is a chemical analog of MDA. These substances are related structurally in the same way methamphetamine and amphetamine are structurally related.” In United States v. Loftin, 28 M.J. 677 (A.F. C.M.R. 17 March 1989), which was combined with Tyhurst for oral argument, an even more detailed stipulation of the expected testimony of Mr. Sapienza is in the record. It contains actual drawings of the chemical structures of the drugs involved (the precise chemical nature of the analogs present in these two cases are slightly different, though both are commonly referred to by the same street name “Ecstasy”). It is abundantly clear that the chemical “skeleton” of the parent drug is present in the analog.
Suffice it to say, at this point I am not ready to conclude that analogs similar to those with which we are dealing in the cases now before us cannot be prosecuted under Article 112a as “derivatives” of their parent drugs. However, in neither Tyhurst or Loftin did the Government raise this theory as a basis to support prosecution of the charged offenses relating to the drug “Ecstasy.” Thus, there has been no record developed upon which this Court could intelligently address the issue. I therefore concur in the result reached.