(concurring in the result):
My dissent in United States v. Graham, 50 MJ 56 (1999), was grounded on the principle of fair rebuttal in a case where the accused had made use of a similar “innocent ingestion” defense in a prior drug trial. I held that under the specific circumstances in Graham (where the accused at trial was possibly misleading the jury with his explanation that he was “flabbergasted” to see a positive urinalysis) the jury was entitled to know about the prior positive urinalysis under the “lightning is striking twice” theory. Id. at 60-63 (Sullivan,, J., dissenting).
In the instant case we have different circumstances. Immediately on being told that she tested positive for drugs, appellant was required to submit to a command-directed urinalysis (which later proved positive for drugs). See United States v. Campbell, 41 MJ 177 (CMA 1994). Although it may have been reasonable for a commander to order that second urinalysis, see Mil.R.Evid. 313(b), it is not fair to introduce it at trial and put an unjustified double burden on the accused. See Mil.R.Evid. 403 (probative value “substantially outweighed by the danger of unfair prejudice, [or] confusion of the issues,----”). In effect, the accused is forced to defend against two separate incidents of drug use while being charged with only one. Absent the special circumstances described in Graham, where I decided that the rebuttal evidence of the “prior positive result” was necessary to prevent the jury from being misled, I join the result of the majority here. I do so because to do otherwise would increase the danger that command-directed-urinalysis results that are positive, like in this case and in future similar cases, may become admissible simply because a servicemember’s defense is innocent ingestion. Accordingly, I join the majority’s result in authorizing a rehearing under the circumstances of this case.