(dissenting):
Just as this Court has done numerous times in the past, the majority has recognized the impact of drug abuse “on the readiness of the armed forces to engage in combat.” 50 MJ at 158. However, it holds that the prosecution’s evidence as to testing by Northwest Toxicology Laboratory (NTL) is not sufficiently rehable “to eliminate the reasonable possibility of ... a false positive” for LSD. Id. at 161. Because I do not agree with the majority that the trial judge abused his discretion in his “gatekeeper” role under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), I dissent.
FACTS
The evidence of appellant’s use of LSD arose as a result of a random urinalysis. Appellant’s urine sample was sent to the Army’s drug testing laboratory at Fort Meade, Maryland, where it was tested twice over a 4-day period using radioimmunoassay analysis (RIA) for LSD. Both tests indicated that appellant’s urine contained LSD. Because RIA does not quantify the amount of the drug, the sample was then sent to NTL in Salt Lake City, Utah, for additional testing. At NTL, appellant’s sample was tested by a methodology known as gas chromatography/tandem mass spectrometry (GC/MS/MS). After performing that test, appellant’s urine showed a level of 307 programs of LSD per milliliter. Department of Defense Directive 1010.1 establishes a cut off level of 200 picograms.
Dr. Rodger Foltz, the laboratory director of NTL, testified that the GC/MS/MS test is “based on scientific principles ... accepted by the scientific community” and represents the “state of the art” in testing for drugs. Other toxicology laboratories are using the same test; however, because the testing instrument costs about $350,000, its use is not widespread. This method of testing has been “presented at conferences on at least two occasions by two fellow toxicologists,” where it was subject to peer review. Dr. Foltz testified that he published an article in a peer-reviewed journal, Analytical Chemistry, in 1992 on the GC/MS/MS testing employed at NTL. There are no other articles on this method, however, because the “normal practice” is for scientists to publish an article only when there is a problem.
To ensure the accuracy of NTL’s testing, the Armed Forces Institute of Pathology (AFIP) sends NTL twenty “open quality-control samples” per month. These samples are presented for analysis, and the laboratory does not know what drug, if any, or what concentration of drugs is present. These *165blind samples have been received since 1993, after the laboratory was certified.
Additionally, AFIP itself conducted an “extensive review” of the procedures used at NTL to make doubly sure the methodology is reliable prior to awarding them a contract. After NTL had been given a number of samples and had passed the quality control of AFIP, the Army concluded that NTL’s methodology for detecting LSD was “very accurate.” Moreover, fifteen blind quality-control samples were returned by NTL to AFIP over a period of time, all of which were tested correctly. Additionally, AFIP sent ten “open quality controls” per month to NTL and the results of these tests fell within the standard deviation permitted for quality control. These open quality-control tests also were compared with two other labs who do the same type of testing and no significant statistical deviation was found between their results and NTL’s findings.
Dr. Arthur J. McBay, a retired forensic toxicologist, testified that the GC/MS/MS was not accepted in the scientific community as a method of testing for drugs. However, he did say that this test has been accepted for use in hair analysis. Concerning the RIA test, Dr. McBay conceded that it is “a reliable means to screen for LSD.”
Moreover, Dr. McBay testified he was familiar with the publications, Analytical Chemistry and the Journal of Analytical Chemistry, and, as a scientific peer, had reviewed an article concerning GC/MS/MS in the former. “The two reviews are looked at and accepted....” However, he indicated that there were not 100 papers on this topic but one, and that peer review of the single article does not constitute acceptance of the methodology. True peer review, he indicated, would be the same methodology being used by more than one lab. He admitted that the validity of the GC/MS/MS test was strengthened by the fact that it is used in two Navy laboratories. Additionally, in response to a hypothetical, Dr. McBay said that if other tests were getting “similar results” with quality control samples, this would “tend to validate the GC/MS/MS methodology.”
Dr. Robert K. Simon, owner of Toxicology International, also testified for the defense. Dr. Simon testified concerning the GC/ MS/MS procedure, as follows:
[G]as chromatography tandem mass spectrometer procedure ... eombine[s] a gas chromatograph with essentially two mass spectrometers so that instead of having one mass spectrometer to try to identify a particular drug substance, a rather unique system has been established to combine two mass spectrometers together to give us some additional data that can hopefully be used for drug identification.
He also testified:
The difficulty in analyzing for this particular substance in urine, blood or any other biological fluid or even in a piece of — a tab of LSD paper is that the amount is extremely small. The dose that one takes of LSD is somewhere between perhaps 70 and 100 micrograms, that is 70 to 100 one-millionth of a gram, so it is a very small quantity. That then, diluted into the body then can possibly emerge into urine over a period of hours after use in concentrations that are in pecograms and that really is a unit that is one thousand lower than the normal drug substances appear which is nanograms, so we’re at ten-to-the-minus-twelfth range of concentration of this drug per milliliter of urine.
Dr. Simon asserted that the equipment used at Northwest Toxicology is the only one in the country and has not been accepted in the scientific community.
He also testified that the reliability of this equipment at NTL and its results can be shown by use of blind tests confirmed by two other laboratories employing different methodologies. The judge then asked the following question for a member:
Q. Dr. Simon, I have this question for you. Based upon your experience gained from working drug testing for DoD, if GC/MS/MS is in experimental stages, why would DoD contract Northwest to conduct drag confirmation?
*166A. I think the answer to that question is, there is certainly a compelling interest in determining LSD in urine. Certainly the statistics in and outside of DoD tell us that LSD use has reemerged in the late ’80’s and early ’90’s as a drug of choice among individuals, so there is a great interest in being able to develop this method. And certainly, Dr. Foltz is well recognized in the field of forensic toxicology and scientific research as a person highly capable to do this work. So I certainly think the interest is there and I think the reason DoD would contract with him is, he’s a prime individual who has been involved in this type of research for many years. That’s why they would actually contract with him.
Later, Dr. Simon was recalled. He testified that, because of the unusual peaks on the test, he would “disqualify th[e] entire batch,” including the results pertaining to appellant. Then he explained in detail how the court members should examine these peaks and determine the reliability of the test for LSD.
In contrast, Dr. Foltz testified that the “commercial version” of the GC/MS/MS instrument was introduced in 1979 and there are more than 300 such “instruments in operation around the world” to do the same type of testing. Any argument that there has not been similar testing in universities loses its force because it is probably the result of high cost rather than rejection of the process. Even the defense expert, Dr. McBay, stated that the equipment is not available in many laboratories because it is expensive.
DISCUSSION
This case initially started with the issue of whether admission of this expert testimony concerning knowing use of LSD was error. After oral argument, the Court further specified a number of issues.
Specified Issue I: Whether any of the sources of applicable law require a certain cut-off level in order to prove knowing use of LSD beyond a reasonable doubt
Both sides concede that there is no constitutional, Manual, statutory, or regulatory provision — except the Department of Defense directive at issue in this case — which establishes a particular cut-off level necessary for the prosecution to prove beyond a reasonable doubt appellant’s knowing use of LSD. Of course, a directive or regulation prospectively could establish a different cutoff level. See, e.g., United States v. Johnston, 41 MJ 13 (CMA 1994).
Because both parties concede that there is no such specific cut-off level, I address the second specified issue concerning the sufficiency of the evidence.
Specified Issue II: Sufficiency of scientific evidence to infer wrongful use of LSD
Appellant contends that the Government did not present sufficient scientific evidence upon which to draw an inference that appellant knowingly or wrongfully used LSD. In fact, appellant argues that “[t]he Government did not introduce any direct evidence that appellant knowingly used LSD.” Second Final Brief at 8. He contends that the Government did not show “sufficient evidence to explain the significance of the report that appellant’s urine contained a concentration of 307 picograms of LSD.” Id. at 14.
The Government begins its argument by stating that the factfinders may use “a permissive inference” to determine wrongfulness. Second Answer at 13. The Government contends that it presented expert testimony on the testing methods, the standards used, and the results of LSD use on the human body. Id. at 14. It explained to the members the DoD picogram cut-off level (200) and compared that to the pico-gram level in appellant’s urine sample (307). Id. at 13-14.
When reviewing the sufficiency of the evidence, we give great deference to the factfin-der’s ability both to draw logical inferences from the evidence presented and to assess the credibility of the witnesses, including expert witnesses. We have stated:
The standard for determining the legal sufficiency of evidence supporting findings of guilty at courts-martial is well established. Judge Cox, writing in United *167States v. Harper, 22 MJ 157, 161 (CMA 1986), stated, “[I]n this context, sufficient evidence generally means some legal and competent evidence from which a court-martial may find or infer beyond a reasonable doubt those facts required by law for conviction.”
United States v. Pritchett, 31 MJ 213, 216 (CMA 1990)(footnote omitted). We went on to say: “Moreover, it is well established that, in applying this test, all inferences and credibility determinations must be drawn in favor of the prosecution.” Id. at 216; see also, S. Childress and M. Davis, Federal Standards of Review § 9.02 at 9-8 (2d ed. 1992) (“[I]f inferences are required to be made from the factual evidence to the verdict, the court must review those in the light most favorable to the verdict”). This Court in Harper acknowledged that “[i]n the absence of evidence to the contrary, the prosecution may meet this burden [of proving wrongfulness] by reliance on a permissive inference of wrongfulness which has long been recognized by military law as flowing from proof of the predicate fact of use of a contraband drug.” 22 MJ at 162. Further,
[i]t is quite clear from paragraph 213g(5), Manual [for Courts-Martial, United States, 1969 (Revised edition)] ..., and our case law that the inference of wrongfulness is a permissive inference or presumption, not a mandatory inference or presumption. It does not relieve the prosecution of its burden of persuasion because it still requires the prosecution to convince the factfinder that the suggested conclusion of wrongfulness should be inferred based on the predicate facts proven.
(Citation omitted).
In Harper, this Court upheld an accused’s conviction for use of marijuana where an expert testified that the nanogram level of marijuana in the urine sample “ruled out the possibility of passive inhalation” and “indicated that the user at sometime experienced the physical and psychological effects of the drug.” The Court also noted that the accused in that case tested positive on three occasions. In addition, the accused’s testimony “as a whole discounted” the possibility of innocent ingestion. 22 MJ at 163.
I am satisfied that there are many facts in the case at bar from which the members logically could draw an inference that appellant’s use of LSD was knowing and unjustified, and, thus, wrongful.
An expert, Dr. Foltz, the laboratory director of Northwest Toxicology, testified that there has never been a report of other substances creating LSD in the body and excreting it in the urine. He also stated that his laboratory’s drug tests “clearly” differentiate between LSD and any other “ergot alkaloid” contained in prescription medication.
Although no expert specifically discounted the possibility of passive ingestion, appellant himself acknowledged that, during the relevant time frame, he observed no signs that anyone in his residence was under the influence of a controlled substance. Appellant’s testimony, combined with statements of the government experts, discount the possibility that appellant innocently ingested LSD.
Whether appellant experienced or was observed experiencing the effects of LSD is irrelevant to the issue of whether he knowingly used the drug. A defense witness who had been an emergency medical technician admitted on cross-examination that an individual who takes a low dosage of LSD might not exhibit outward signs of drug use.
Drawing all inferences and credibility determinations in favor of the prosecution, I would hold that the members logically could infer from the facts of this case that appellant’s use of LSD was wrongful beyond a reasonable doubt.
Specified Issue III: Reliability of testing procedures for LSD
The standard of review for this evidentiary issue is whether the judge abused his discretion. General Electric Co. v. Joiner, 522 U.S. 136, -, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997); United States v. Houser, 36 MJ 392 (CMA), cert. denied, 510 U.S. 864, 114 S.Ct. 182, 126 L.Ed.2d 141 (1993). The Supreme Court indicated in Daubert, 509 U.S. at 589, 113 S.Ct. 2786, that the overarching theme for admitting evidence is relevance and reliability. The Court, in dictum, *168then indicated that there are a number of factors that the judge, who is a gatekeeper, may examine: (1) testing for error; (2) peer review and publication; (3) the potential error rate using a particular scientific technique; and (4) the degree of acceptance in the scientific community. Id. at 593-94, 113 S.Ct. 2786.
I would hold that the judge did not abuse his discretion in admitting the results of the GC/MS/MS test. These results were logically relevant to this case and the reliability is established by the four factors mentioned in Daubert. The reliability of the testing has been established by the fact that open-control testing by NTL compared favorably with two other labs testing on the same blind samples. The other laboratories were using the GC/MS test and the reliability of this test can be judicially noted. State v. Cathcart, 247 N.J.Super. 340, 589 A.2d 193, 199 (1991). Additionally, two prior RIA tests showed appellant’s urine sample was positive for LSD.
In addition to empirical testing, the testing used in this case has been subject to peer review in two separate publications. Dr. Foltz published an article in Analytical Chemistry. He also published an article in the Journal of Chromatography in 1990. Further, this method of testing was presented at two other conferences by fellow toxicologists. Since these presentations and articles occurred, appellant can point to no adverse commentaries or studies indicating that GC/MS/MS procedures are unreliable.
There have been no false positives at NTL, and, as previously mentioned, appellant’s sample twice tested positive for LSD before it was sent to NTL. Thus, the chance of error for this test is minimal.
The scientific principles used in this case are “state of the art.” Other toxicology laboratories are using the same test which shows acceptance within the scientific community.
For these reasons, I dissent.