(concurring in part):
12. In this case I part company, narrowly, on the question of waiver. See United States v. Huffman, 40 MJ 225 (CMA 1994). In my mind, waiver is the “intentional or voluntary relinquishment of a known right.” See Black’s Law Dictionary 1580 (6th ed. 1990). Therefore, before I tax a service-member with the mantle of waiver of a constitutional or statutory right, I want to be certain that the member knows that he or she enjoys that right. See United States v. Johnson, 21 MJ 211, 216-17 ¶ 25 (CMA 1986) (Cox, J., concurring in the result), where I stated:
One important reason to insist that military judges build a complete record is to insure that our military justice system continues to operate with the highest standards and is a model of justice in the field of criminal law. It is far more difficult for an accused to complain of unfair or unjust treatment when the record of trial clearly indicates that he understood -each and every allegation against him; that he understood each and every right he had at each stage; that he knowingly and consciously waived any of those rights; and that, when appropriate, he acknowledged his own belief in his guilt. Without a complete rec*431ord to perpetuate these matters, the military justice system is vulnerable to the allegation that it is a system of “drumhead justice.”
13. I acknowledge that the Supreme Court of the United States may not require intentional waiver to satisfy constitutional norms of due process to the same degree that I believe that perhaps military due process should. After all, that is why we have lawyers in the courtroom, isn’t it? Lawyers advise clients of their rights. That is certainly true. Nevertheless, in my judgment the benefits from obtaining waivers on the record of trial far outweigh the minor inconvenience to judges and trial attorneys which comes from doing it right. Therefore, I believe that we should require waiver of constitutional and statutory rights to be an affirmative, knowing waiver.
14. That same rationale does not apply to trial tactics and errors. According to Mil. R.Evid. 103(a), Manual for Courts-Martial, United States, 1984: “Error may not be predicated upon a ruling which admits or excludes evidence unless the ruling materially prejudices a substantial right of a party.” See also Art. 59(a), Uniform Code of Military Justice, 10 USC § 859(a) (“A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.”); United States v. Fisher, 21 MJ 327 (CMA 1986).
15. Judge Crawford made a good argument for the validity of these “raise or waive” rules in her separate opinion in United States v. Huffman, supra at 229 ¶ 15. I do not disagree with her views to the extent we are talking about events which transpire in the course of the litigation, whether before, during, or after trial.
16. It would be folly to try to list all the various types of issues and objections which arise during litigation, including pretrial and post-trial litigation, which are subject to the “raise or waive” rules. See RCM 907, Manual, supra. Suffice it to say here, if an accused wants to waive a statutory or constitutional right, we should be able to see from the record of trial that the accused knowingly gave up that right.
17. Nevertheless, even with this principle in mind, I approach a case such as this one (and Huffman) with a different perspective from that of the then-Air Force Court of Military Review and my colleague, Judge Crawford. First, I ask, “What is the error being alleged?” Second, “Is it error?” Third, “Was the error waived by failure of counsel to object or otherwise raise it at trial?” See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); United States v. Fisher, supra, and other harmless-error cases. I recognize that I may be arguing semantics, but it seems to me that this approach is mandated by Article 59(a) and Mil.R.Evid. 103. How else can an appellate judge determine if the error materially prejudiced an accused if the judge never considers the error?
18. The error alleged here is that appellant’s court-martial was barred by the Double Jeopardy Clause of Amendment V of the Constitution or by Article 44(a), UCMJ, 10 USC § 844(a). The Court of Military Review disposed of the case “on waiver grounds,” unpub. op. at 2, citing United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), and RCM 907(b)(2)(c). Like the majority here, however, they continued with the following utterance:
Although we dispose of this case on waiver grounds, it is clear we would find no basis for relief here if the double jeopardy objection had been made by appellant at the second trial [relying on Oregon v. Kennedy, 456 U.S. 667, 675-76, 102 S.Ct. 2083, 2089-90, 72 L.Ed.2d 416 (1982) ].
Unpub. op. at 2.
19. I would approach this case from the opposite direction and hold that the accused was not tried twice for the same offense. Oregon v. Kennedy, 456 U.S. at 675-76, 102 S.Ct. at 2089-90 ¶ 17; United States v. DiAngelo, 31 MJ 135 (CMA 1990). Appellant has not met her burden to show that the prosecutor goaded her into her mistrial motion.
20. Because there was no error, there is nothing to waive. Because there is no error, *432we do not have to test the error for harmlessness. Because there is no error, we do not have to consider whether the accused had effective assistance of counsel at her court-martial rather than consider whether a competent attorney would have raised the double-jeopardy question. Lastly, because there is no error, we do not have to consider whether United States v. Broce, supra, applies to a military accused under Article 44 or whether Article 45, UCMJ, 10 USC § 845, requires us to provide the military member an expended right that must be protected under due process considerations. See Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2089, 40 L.Ed.2d 628 (1974).
Except for these observations, I concur. There was no double-jeopardy violation in appellant’s case.