with whom COX, Chief Judge, joins (dissenting):
Although trial defense counsel withdrew her notice of intent to offer the defense of innocent ingestion and was subsequently warned not to pursue the defense, having withdrawn it, I cannot even begin to imagine what more she could have introduced than she actually did. Thus, and for the following reasons, I would affirm the lower court’s decisions on both Issues I and II.
DISCUSSION — ISSUE I
Requirement for Corroborating Witnesses: The first question is whether the military judge erred in requiring that the defense of innocent ingestion be raised by testimony of witnesses other than appellant himself.
Assuming that the military judge did impose such a requirement on the defense counsel, I concur with the majority that that was error. RCM 701(b)(2), Manual for Courts-Martial, United States (1995 ed.), requires only that, “in the case of an innocent ingestion defense, the place or places where, and the circumstances under which the defense claims the accused innocently ingested the substance in question, and the names and addresses of the witnesses upon whom the accused intends to rely to establish such [a defense]” must be disclosed to the Government before the court-martial begins. Nowhere does the rule require the defense to rely upon any witnesses to establish the defense.
However, I find it far from obvious that the military judge created such a requirement. The military judge summarized the February 26, RCM 802 conference at which the parties and the military judge discussed defense counsel’s notice of the innocent ingestion defense, as follows:
We basically discussed what it was and the potential that if the defense was going to put that on, it’s an affirmative defense in which she would have to put on evidence of persons and places to which the events of innocent ingestion took place. We discussed that defense counsel had not prof*384fered any names or places and the trial counsel indicated that he would be objecting to any kind of innocent ingestion defense because none of the information has been met as required by the RCM. I guess when we get to the motion stage, we’ll discuss whether or not you want to continue on with that motion or not, Lieutenant Boeock.
Neither counsel objected to this summary or asked to add anything to it. See RCM 802(b). Nothing in this summary indicates that the military judge was prepared to preclude this defense because of a lack of witnesses. In fact, the summary merely indicates that the military judge was inclined to have the defense notice litigated on the record.1
The matter was never litigated on the record because defense counsel voluntarily withdrew the motion. Later, at an Article 39(a)2 session called by the military judge when it appeared that defense counsel was pursuing the defense despite having withdrawn her notice, defense counsel stated:
The reason why the defense was withdrawn is because it’s my understanding that it would not be a defense unless there are witnesses who could specifically state that they did something to the individual’s drink. However, it was my understanding that I could still present the circumstances of the evening where something could have happened.
Again, there is nothing in this statement that indicates the military judge had previously told defense counsel that she could not pursue this defense without corroborating witnesses. She only indicated her own misinterpretation of the rule, without indicating a source for her misunderstanding.
Finally, in her affidavit- submitted to the Court of Criminal Appeals, defense counsel states that, “at the 802 Session held on 26 February 1996, the Military Judge stated that he would not allow me to present evidence of innocent ingestion because I could not' produce evidence of an individual who may have put cocaine in MSSR Lewis’ drink on the nights in question, or words to that effect.” This statement is inconsistent with what is revealed on the record of defense counsel’s reasons for withdrawing her notice and the contents of the 802 conference. Were this first question determinative, I would conclude that the ease must be remanded for a DuBay3 hearing, so that affidavits could be secured from trial counsel and the military judge and other evidence could be analyzed. However, I do not believe that this is the end of the Court’s inquiry.
Constitutional Error: Assuming that there was error, the next question is whether it rises to the level of a constitutional error. The majority declines to answer this question, deciding that if it is constitutional error, the Government has failed to meet its burden of showing the error was harmless beyond a reasonable doubt, and if it is not a constitutional violation, appellant has made a sufficient showing that the error substantially prejudiced his material rights. 51 MJ 380.
Denying an appellant the opportunity to testify fully and present evidence in his defense, as is alleged in the first granted issue, is an error of constitutional proportion. See Alicea v. Gagnon, 675 F.2d 913 (7th Cir.1982) (Wisconsin’s alibi-notice statute’s preclusion sanction abridged petitioner’s Fifth, Sixth, and Fourteenth Amendment right to testify in his own defense; however, the error was harmless given the overwhelming evidence against him and, most significantly, that he was not ultimately precluded from offering the evidence); see also Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988)(Compulsory Process *385Clause grants a criminal defendant the right to present evidence on his behalf but does not bar a court from applying the preclusion sanction for noncompliance with discovery rules); United States v. Johnson, 970 F.2d 907 (D.C.Cir.1992)(preclusion sanction does not require a least-restrictive-alternative analysis or a showing of bad faith on the part of the defense).
Harmless Error. The final question, again, assuming this error, is whether the Government has met its burden of showing that the military judge’s error was harmless beyond a reasonable doubt.
The majority assigns error to the military judge in: (1) denying defense counsel the opportunity to convey appellant’s version of the facts through appellant’s testimony of a possible motive someone might have had to spike his drink at one of the clubs, and the circumstances surrounding his possible innocent ingestion of cocaine; (2) preventing defense counsel from framing the defense in her opening statement and closing argument; and (3) failing to give an instruction on innocent ingestion. I find all of these alleged errors to be harmless beyond a reasonable doubt.
Appellant testified on his own behalf. Defense counsel elicited from appellant that he was at two clubs on each of the two days preceding his urinalysis. Appellant described the clubs as dark, loud, and crowded. The military judge allowed defense counsel to introduce a schematic drawing of the Princess Pub, the larger of the two clubs and the one at which appellant spent the most time on the nights in question, including marks representing the three places at which appellant sat. Appellant further testified that he was drinking beer from both a bottle and a glass, as were others around him at the bar. He testified that he was at the bar location for approximately 45 minutes on the night before the urinalysis. He also testified that he got up from his seat more than half a dozen times to pay for karaoke music, use the restroom, and order food; that he always left his unfinished beer at his place; that he would finish the beer when he returned; and that the beer would not seem altered when he finished it, just warmer.
In addition, appellant testified that he had been to both clubs at least ten times each before these evenings. He stated that he felt pretty comfortable at these clubs and that he had made no enemies. Appellant testified that he went to the bars alone but that he recognized the bartender and was on friendly terms with her. He also testified that on the nights in question, he spoke to the bartender and a few female patrons. Furthermore, he testified that on each night in question, he drank between a half and three-quarters of a fifth of vodka before going out and had approximately a dozen beers at the clubs.
Motive to Spike Appellant’s Drinks: The Government’s cross-examination of appellant included questions intended to elicit whether he had any enemies at the clubs that might have intentionally spiked his drinks. Appellant indicated that he did not know anyone at the clubs; that he was there alone; and that he only had intermittent small talk with other patrons and the staff. When asked if anyone there knew appellant was in the Navy, his response was that it was pretty obvious he was a sailor, but that he did not recall anyone asking him that and he doubted he had told anyone. Redirect consisted almost entirely of the following:
DC: Now, on the 26th, when you went to the Princess Pub, did you notice anything missing from your possession?
ACC: Yes. That was the night that I got $80.00 stolen from me.
DC: What night was that?
ACC: The 26th.
TC: Objection. Relevance.
MJ: Sustained.
DC: Was anyone talking to you when you were at the Princess Pub on the 26th?
ACC: The waitresses, people. Sometimes you sing a song, or whatever, and you just strike up a conversation of how good it was or how bad it was, nothing in length.
DC: Nothing further, sir.
The remainder of appellant’s defense consisted of witnesses and documentary evidence of appellant’s good military character and reputation for truthfulness.
*386Defense counsel did not raise the stolen wallet issue again until the following morning during an Article 39(a) session, as follows:
DC: Yes, sir. When petty Officer Lewis was testifying yesterday, the Government was allowed to get into the fact that no one in the bar may have had a motive to put something in his drink. He was allowed to ask questions such as: Did you have a fight with anyone? Did you have a problem with anyone? Then, on redirect, defense, myself, tried to get into the possibility that someone might have had that motive which the Government had opened the door to that and I was not allowed to ask questions on that. If I could, I would at least like to, for the record, make an offer of proof.
DC: On the cross-examination of the witness, the Government had asked whether or not anyone in the bar were to have a fight with anyone in the bar, whether anybody in the bar had a problem with you, to which the witness stated “no.” And then on redirect, I attempted to get out the fact that stuff was taken from Petty Officer Lewis and I was not allowed to ask that question.
MJ: And?
DC: The objection being that the Government essentially opened the door by trying to dispel that anybody would have had a motive.
MJ: So, you’re saying, basically, his wallet or something was stolen?
DC: That’s correct, sir.
MJ: And the proffer you’re saying is?
DC: Essentially, sir, the testimony would have been that money was stolen in the amount of $80.00 and his military I.D. was stolen also.
MJ: And how is that relevant?
DC: Well, again, sir, the Government opened the door by attempting to draw it out that no one in the bar would have had a motive to do anything to spike Petty Officer Lewis’ drink.
❖ * *
MJ: For argument’s sake, how does the motive to spike someone’s drink correlate with—
DC: Well, sir—
MJ: A motive to steal someone’s wallet?
DC: Well, sir, if someone was intending to steal something from Petty Officer Lewis, that would indicate, first of all, that someone did have a problem with him, someone did know he was in the military, so again, it would—
* * *
DC: Sir, like I said, I just wanted to state for the record what the proffer of testimony would have been. Counsel fully agrees that it would not have been relevant had the Government not have opened the door in the first place as far as dispelling possible motives of individuals in the bar.
* * *
MJ: Well, I don’t even look at that as innocent ingestion [evidence]. I don’t think it’s relevant. I don’t get the lead from someone stealing somebody’s wallet, to someone spiking someone’s drink, that someone to — and, therefore an innocent ingestion defense, I don’t get that at all.
Setting aside that defense counsel’s proffer was untimely, there is nothing faulty in the military judge’s analysis. Evidence that appellant’s wallet was stolen at the Princess Pub on October 26 is not relevant as to why an acquaintance, let alone a perfect stranger, would want to put cocaine in appellant’s drink without him knowing. Mil.R.Evid. 401, Manual, supra (“‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable tha[n] it would be without the evidence.”).
As the Government’s expert witness, Mr. Cecil Hornbeck testified that people mix cocaine in their alcoholic drinks because it enhances the cocaine high and diminishes the drunken effect: This is viewed positively by drug users. It has no apparent malevolent *387use, like drugging a person into an incapacity to fight off a sexual attack or a robbery attempt.
The Government suggested as much in its closing argument when trial counsel noted that cocaine is expensive and, therefore, it is “counter-intuitive that someone would go about — drugging an expensive substance— the perfect stranger [sic].” Defense counsel may have come to a similar realization because she did not respond to that part of the Government’s argument. Instead, defense counsel used the evidence she had presented to suggest that in that dark, crowded club, with all the similar looking glasses of beer surrounding appellant’s, he could have just picked up someone else’s intentionally-spiked drink by accident.
Evidence that whoever stole his wallet also stole his military I.D. and might have had a motive to spike his drink because he was a sailor is similarly unconvincing. Furthermore, appellant testified that he thought it was obvious to everyone there that he was a member of the military, without their having the proof of his I.D. card.
Thus, I would conclude that this evidence not only was properly excluded pursuant to Mil.R.Evid. 401, but also presents a significantly less persuasive strategy than that actually used by defense counsel in her closing argument.
Appellant’s Testimony. Once appellant had begun to testify about how dark and crowded the clubs were, and about the drawing of the Princess Pub’s layout, the military judge called an Article 39(a) session sua sponte. His concern was that defense counsel was getting awfully close to the innocent ingestion defense she had withdrawn. Defense counsel indicated that the evidence she wanted to present was of “the nature of the club, how crowded the club was, where people may have been sitting. Where the witness, Petty Officer Lewis, may have been sitting. Again, just laying out what the circumstances and the atmosphere of the club were on that evening.”
Despite trial counsel’s objections, the military judge told defense counsel that she could present this evidence: “As I understand it, you want to have the witness testify that he was — I went to these clubs at certain nights; I sat here; I sat there; I sat there; there were lots of people; it was dark; it was crowded. What else?” Defense counsel said that was basically all she wanted to present and that she would not be getting into whether this club might be known to be frequented by drug users.
As the above discussion indicates, not only was defense counsel able to present all of this evidence through appellant’s testimony, but she was also able to use it in a persuasive fashion in her closing argument. I find incredible defense counsel’s post-trial statement that, “because of the Judge’s statements that he would cut me off if I started to present evidence of innocent ingestion, I was not able to get out as much detailed information on the atmosphere of the club, the demeanor of the people at the club, what other people in the club were drinking and how they were acting.”
Other than appellant saying straight out that he knew that people at this club spiked their drinks with cocaine — which would violate what defense counsel explicitly told the military judge she would not do and also potentially play to the Government’s tactical advantage — I am at a loss for what more detail defense counsel could have presented. There is no magical incantation necessary to make a defense a defense. The military judge permitted defense counsel to present evidence which subtly suggested a viable innocent ingestion alternative to the members. See Gagnon, 675 F.2d at 925.
Furthermore, a specific instruction on the defense of innocent ingestion could not have focused the members’ attention on the issue of knowing ingestion any more than the instruction given on knowledge did. The military judge made clear to the members that appellant could not have knowingly ingested cocaine if someone had slipped it into his drink without his awareness.
DISCUSSION — ISSUE II
Because I find that any error by the military judge with regard to Issue I was harm*388less beyond a reasonable doubt, I must, unlike the majority, resolve Issue II.
Where a military judge refuses to give a requested instruction, this Court reviews for an abuse of discretion. United States v. Damattar-Olivera, 37 MJ 474, 478 (CMA 1993), cert. denied, 512 U.S. 1244, 114 S.Ct. 2760, 129 L.Ed.2d 875 (1994). “The test to determine if denial of a requested instruction constitutes error is whether (1) the charge is correct; (2) ‘it is not substantially covered in the main charge’; and (3) ‘it is on such a vital point in the case that the failure to give it deprived defendant of a defense or seriously impaired its effective presentation.’” Id., quoting United States v. Winbom, 14 USC-MA 277, 282, 34 CMR 57, 62 (1963); see also United States v. Poole, 47 MJ 17, 19 (1997).
Defense counsel requested an instruction on voluntary intoxication, which was rejected by the military judge. Though appellant’s only characterization of his level of sobriety on the nights in question was that he was “feeling great,” he testified that he had at least half a fifth of vodka and a half a case of' beer on each night. It is unclear over what period of time appellant drank this alcohol. Furthermore, he indicated that, at the time of both the urinalysis and the court-martial, he weighed 185 pounds and stood at 5’7”.
The Government makes a convincing argument that appellant’s memory seems to be unimpaired by this heavy drinking. In addition, although Mr. Hornbeck testified that appellant’s urinalysis results indicated coca-ethylene in his system, a drug created when alcohol and cocaine are ingested concurrently, he also testified that the substances do not have to be mixed together to be considered concurrently ingested. Mr. Hornbeck also testified that mixing the two substances enhances the cocaine high but diminishes drunkenness. He further testified that, given defense counsel’s hypothetical that the drugs were orally ingested 24 hours prior to the urinalysis, the level evidenced in the testing4 indicated that a “recreational dose ... designed to get a person high” was ingested.
Voluntary intoxication is generally not a defense; however, evidence of it can be introduced to raise “a reasonable doubt as to the existence of actual knowledge ... if actual knowledge ... is an element of the offense.” ROM 916(l)(2); see also United States v. Hensler, 44 MJ 184, 187 (1996) (voluntary intoxication is not a defense to a general-intent crime but may raise reasonable doubt as to actual knowledge).
Assuming, without deciding, that there was some evidence to support this instruction, and that the military judge erred in not giving it, I would find that there was no prejudice. See Damatta-Olivera, 37 MJ at 480 (Sullivan, C.J., concurring in the result) (the second and third prongs of the test essentially test for prejudice). The members were sufficiently instructed that appellant’s use must have been both knowing and conscious. Had they chosen to believe appellant’s alternative scenario of innocent ingestion, they would have implicitly believed that he was too drunk to know which drink was his and that his beer was having an unusual effect on him. The instructions as given permitted them to do so.5
Thus, I would affirm the lower court’s decision.
*389APPENDIX
UNITED STATES NAVY SPECIAL COURT-MARTIAL ISLAND JUDICIAL CIRCUIT
UNITED STATES )
)
V. ) NOTICE OF DEFENSE OF
) INNOCENT INGESTION
Julian W. Lewis )
MS3. ,PSK_l
1. Pursuant to the Rules for Courts-Martial 701(b)(2) the defense hereby gives notice to the -government of the intent to offer the defense of innocent ingestion.
2. The defense is not offering any specific location, specific circumstances or specific witnesses to testify as to where the innocent ingestion took place.
3. The accused could have innocently ingested the cocaine in Club Chance at 98-199 Kam Highway, Suite C7, Aiea, HI or at the Princess Pub at 98-199 Kam Highway, Aiea, HI on 25 October 1995.
4. The Circumstances surrounding the possible innocent ingestion are unknown.
5. There are no witnesses who will testify as to any direct knowledge of the accused innocently ingesting any cocaine.
MONIQUE J. BOCOCK
LT, JAGC, USNR
DETAILED DEFENSE COUNSEL
Dated: 22 February 1996
CERTIFICATE OF SERVICE
I hereby certify that a copy of this notice of defense of innocent ingestion was served on LT T.J. Fisher, JAGC, USNR, the Government Counsel in the above captioned case, on 22 February 1996.
MONIQUE. J. BOCOCK '
LT, JAGC, USNR
DETAILED DEFENSE COUNSEL
. It is worth noting that the notice offered by the defense was indeed meager. It stated that the defense was “not offering any specific location, specific circumstances or specific witnesses to testify as to where the innocent ingestion took place"; that the "[c]ircumstances surrounding the possible innocent ingestion are unknown,” but that it “could have” occurred at Club Chance or the Princess Pub on "25 October 1995”; and that there are "no witnesses who will testify as to any direct knowledge of the accused innocently ingesting any cocaine.” See Appendix.
. UCMJ, 10 USC § 839(a).
. United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967).
. Testing showed 10489.6 ng/ml. The legal cutoff used by the Navy lab to confirm as positive for cocaine is 100 ng/ml.
. I note somewhat parenthetically that there was evidence not presented to the members, and which the Government chose not to pursue, that appellant’s urine sample also tested positive for THC (marijuana). Though the level was below the legal cut-off for a positive result, Mr. Horn-beck stated that the sample "has a better than 99 percent chance of confirming positive for THC.” In his addendum to his RCM 1105 matters, appellant wrote that he is "coping with [his] substance abuse problem,” though he does not indicate whether that is alcohol or drug abuse or both.