(dissenting):
I would affirm. There was proof in this case that LSD does not occur naturally in the body. There was also proof that the constituent elements of LSD were found in appellant’s urine. Finally, there was expert testimony explaining this scientific proof and its meaning to the members. Our decisions require no more for the members to be able to determine guilt. See United States v. Pabon, 42 MJ 404, 406-07 (1995) (evidence sufficient where experts testify that test results consistent with use although not accompanied by sufficient physiological or psychological symptoms); cf. United States v. Hunt, 33 MJ 345, 347 (CMA 1991) (evidence not sufficient where no expert testimony whatsoever explaining test results); see generally United States v. Boulden, 29 MJ 44, 47 (CMA 1989).
In my view, the majority’s reliance on United States v. Harper, 22 MJ 157 (CMA 1986), for additional proof requirements is fatally flawed. This case is quite different from Harper, where the question before the Court was the sufficiency of the Government’s urinalysis evidence to show wrongful marijuana use, not wrongful LSD use, as in appellant’s case. There, the quantitative testing evidence was offered to rule out the possibility of passive inhalation of marijuana smoke, not a reasonable possibility in a case involving the oral consumption of micro-dot LSD. Moreover, in Harper, supra at 163— 64, this Court specifically noted that “it could not be determined whether appellant was actually experiencing the physiological or psychological effects of marijuana at these times and places [as charged.]” (Emphasis added.)
In reality, therefore, the majority makes new law in this case and, in the process, raises serious questions about military drug prosecutions based on our past cases. Harper was the first word, not the last word or the only word, on the subject of sufficiency of evidence in urinalysis cases. See United States v. Bond, 46 MJ 86 (1997); United States v. Pabon, supra; United States v. Thompson, 34 MJ 287 (CMA 1992); United States v. Boulden, supra; United States v. Ford, 23 MJ 331 (CMA 1987). Moreover, the majority’s new approach to drug prosecutions goes far beyond the rules for proving drug cases now provided by the President in the Manual for Courts-Martial, United States (1998 ed.). See para. 37(c), Part IV. I must dissent.
Turning first to the new rule established in this case, it is one of evidentiary sufficiency *163in urinalysis prosecutions. The majority asserts that knowing (wrongful) use of drugs requires more than scientific proof that the drug or its constituent elements are in a soldier’s urine and that the body does not naturally produce them. In addition, it requires the Government to show
that the cutoff level and reported concentration are high enough to reasonably discount the possibility of unknowing ingestion and to indicate a reasonable likelihood that the user at some time would have “experienced the physical and psychological effects of the drug,” see id. [Harper, 22 MJ] at 168; Murphy, supra [23 MJ] at 312.
50 MJ at 160. The majority concludes in this case as follows:
The evidence left open the question whether the cutoff level established by DoD and the concentration level reported by NTL, in view of the margin of error, would reasonably exclude the possibility of a false positive and would indicate a reasonable likelihood that at some time a person would have experienced the physical and psychological effects of the drug. This is the type of evidence we required in Harper to ensure that any use was wrongful. It is missing in this case.
50 MJ at 161 (footnote omitted).
In my view, the majority has misread this Court’s opinion in Harper. In that case, we did consider the fact that the expert testified “that the nanogram readings ... ruled out the possibility of passive inhalation.” We also considered the fact that the expert “testified that these particular results indicated that the user at sometime experienced the physical and psychological effects of the drugs.” 22 MJ at 163 (emphasis added). However, this Court noted this additional circumstantial evidence in lieu of addressing the question whether a permissive inference of knowledge drawn from proof of use was alone sufficient to constitute proof beyond a reasonable doubt that a servicemember knowingly used drugs. Id. at 163, citing Ulster County Court v. Allen, 442 U.S. 140, 166-67, 99 S.Ct. 2213, 2229-30, 60 L.Ed.2d 777 (1979). We did not hold that the quantitative evidence proffered in Harper would be required in all cases in the future or that the permissive inference itself was constitutionally insufficient. In any event, we have not required such additional proof and expert testimony in subsequent cases. See United States v. Ford, 23 MJ 331, 336 (CMA 1987); see also United States v. Boulden, United States v. Thompson, United States v. Pabon, and United States v. Bond, all supra.
In addition, paragraph 37(c), Manual for Courts-Martial, United States, 1984, was amended in 1994 after the decisions of this Court in Harper and Ford. See Manual, supra (1994 ed.) at A23-18 and A23-19. Paragraph 37e now states:
(10) Use. “Use” means to inject, ingest, inhale, or otherwise introduce into the human body, any controlled substance. Knowledge of the presence of the controlled substance is a required component of use. Knowledge of the presence of the controlled substance may be inferred from the presence of the controlled substance in the accused’s body or from other circumstantial evidence. This permissive inference may be legally sufficient to satisfy the government’s burden of proof as to knowledge.
Manual, supra (1998 ed.) (emphasis added). As noted above, the majority, citing Harper, requires evidence that the controlled substance is present in the accused’s body in such a quantity that an expert can opine that the effects of the drug would have been felt. I see no basis for this new requirement being added to the above Manual rule. See RCM 918(c), Discussion, Manual, supra (“but some other fact or circumstance from which, either alone or together with other facts or circumstances, one may reasonably infer the existence or nonexistence of a fact in issue” (emphasis added)).
I would also note that the majority’s holding in this case is truly sua sponte in nature. The only issue at this court-martial was the reliability of the GC/MS/MS test to show the presence of LSD in a person’s urine.* There *164was no motion for a finding of not guilty on the basis of insufficient proof of knowledge or any dispute concerning a permissive inference of knowledge being drawn solely on the basis of positive test results under DoD standards. See RCM 917. While a stronger case could have been made by the Government, none of the parties or the military judge read our past decisions as requiring such quantitative certainty.
In conclusion, I share the majority’s concern that great care be taken when service-members are convicted at courts-martial on the basis of urinalysis testing. See United States v. Mack, 33 MJ 251 (CMA 1991); United States v. Van Horn, 26 MJ 434, 438 (CMA 1988); United States v. Murphy, 23 MJ 310 (CMA 1987). Nonetheless, the belated suggestion that we have misread or misapplied the decision of this Court in Harper and that the President has done the same is contradicted by our subsequent case law. In my view, the majority speculates that such scientific proof should exist for LSD, as it does for marijuana, and now decides for the first time that its admission should be mandatory. Cf Bond, 46 MJ at 91 (“This Court will not use the rubric of legal sufficiency to usurp the powers of ... factfinders and enter our own view of guilt.”) I do not join the majority’s action in this case.
The majority does not even decide the granted issue concerning the showing of reliability made *164by the Government in this case with respect to GC/MS/MS testing. I agree with Judge Crawford’s dissent on this point.