(concurring in the result):
Oh! what a tangled web we weave. When first we practice to deceive![1]
Appellant sought to dismiss a charge of wrongful use of marijuana, and by implication, the related charge of false swearing because the Government had destroyed exculpatory evidence, to wit: the sample of appellant’s urine which had been rejected for confirmatory testing since it had not passed the radioimmunoassay (RIA) preliminary screening test. After the legal skirmish related in the majority opinion, the military judge denied the motion to dismiss the charges, but allowed appellant to make whatever evidentiary use of the test he deemed advisable.
Of course, appellant was trying to convince the triers of fact that the “negative” result supported his defense, that is: It proved he had not used the drug. The Government, expectedly, did not agree that the only logical inference from this test result was exculpatory and set out with its witnesses to prove that indeed the test revealed the presence of the tetrahydrocannabinol (THC) metabolites, albeit insufficient to support prosecution, but supporting the Government’s case that appellant had in fact used marijuana.
The majority finds the Government’s affirmative use of the screening test results to be in violation of service regulations and thus appellant was “denied ... due process of law.” 29 MJ 198, 1992
While I concur in the majority’s result, I disagree with their rationale. There is no need to resolve this case based upon deprivation of a constitutional right. I would simply hold that the preliminary test was not admissible, for two reasons:
(1) A “negative” result such as in this case is irrelevant to guilt or innocence, Mil.R.Evid. 401 and 402, Manual for Courts-Martial, United States, 1984; and
(2) The RIA screening test is not the type of test “reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject,” Mil.R.Evid. 703.
Neither this Court nor the Department of Defense has come completely to grips with the proper use of “negative” test results. See United States v. Joyner, 29 MJ 209 (CMA 1989); United States v. Van Horn, 26 MJ 434 (CMA 1988). In fact, trial counsel implicitly argued in this case that negative does not necessarily mean negative.
There are really three results to any of the several tests available. One result is truly negative — it occurs when no THC metabolites are discovered in the urine sample.3 The second is truly positive — it is “reasonably relied upon” by the experts as a basis for an opinion that an accused wrongfully used marijuana. See United States v. Murphy, 23 MJ 310 (CMA 1987); United States v. Harper, 22 MJ 157 (CMA 1986). The third is the intermediate result — it is the result in between true negative and true positive. In this area, either because of policy made at the highest executive levels or because of its perceived unreliability as a basis for expert opinion, *208no inference of guilt — or conversely, innocence — is available. It is this third category with which this Court is now concerned.
The RIA screening is used only to determine if further testing is mandated. The results required for further testing have been administratively determined by the Department of Defense, obviously in conjunction with scientists and experts in the area of urinalysis testing. A negative result which falls below the administratively determined cut-off level of 100 nanograms is in no way dispositive of use or nonuse of marijuana. Indeed, an individual who knowingly ingests marijuana but whose urinalysis result is 99 nanograms is granted a windfall. I would simply hold that the military judge erred in permitting the test results to be placed in evidence because they were irrelevant.
By the same token, the results of the RIA screening should not have been admitted because RIA screening is not a scientific test “reasonably relied upon by experts in the particular field in forming opinions or inferences.” Mil.R.Evid 703. That test is relied upon generally for the purpose of establishing the need for additional tests, such as the gas chromatography/mass spectrometry analysis.4 It is not relied upon by experts to determine use or nonuse of drugs.
Under the circumstances of this case, the Government’s failure to retain the urine sample of a subject whose results are reported negative does not violate an accused’s right to exculpatory evidence. See Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).
. The Macmillan Book of Proverbs, Maxims and Famous Phrases 534 (B.Stevenson, 5th printing, 1965), quoting Walter Scott, Marmion, Canto vi, line 532 (1808).
. As far as violations of appellant’s right to fundamental due process, I am much more concerned that the Government, the Air Force in particular, prosecutes members for drug abuse based solely upon the testimony of other drug abusers, many of whom have very suspect motives for their testimony. Apparently more than one federal circuit has affirmed prosecutions for conspiracy and distribution without the corpus delecti of the illegal drug, because it has been consumed. They have also upheld convictions without any scientific evidence identifying the nature of the illegal drug itself. Cf. United States v. Shrock, 855 F.2d 327, 332-36 (6th Cir.1988); United States v. Osgood, 794 F.2d 1087 (5th Cir.), cert. denied, 479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986). I disagree, however, and continue to invite the defense bar to contest this practice based upon insufficiency of the evidence. Cf. Cook v. United States, 362 F.2d 548 (9th Cir.1966); Slettvet v. State, 258 Ind. 312, 280 N.E.2d 806 (1972).
. Interestingly enough, this result does not mean that the subject tested has never used marijuana; it simply means that no THC metabolite was identified during the test.
. See P. Giannelli, and E. Imwinkelried, Scientific Evidence § 23-2 at 955-58 (1986).