(dissenting):
I agree with Chief Judge Cox that any error in this case was harmless. Art. 59(a), Uniform Code of Military Justice, 10 USC § 859(a). I would also hold that disqualification of the Legal Officer was waived.
What happened at the court below is why we require pretrial matters to be raised at the court-martial in the first instance. If not raised at trial, we apply waiver absent plain error. Before the court below, the defense raised the issue that Lieutenant Commander (LCDR) Small was an accuser and thus could not sign the recommendation. The court below held that there was waiver, citing United States v. Zaptin, 41 MJ 877 (N.M.Ct. Crim.App.1995). When that was unsuccessful, appellate defense counsel sought an affidavit as to LCDR Small’s pretrial conduct to fortify the original issue. A defective preferral of charges may be waived, absent plain error. United States v. Weasler, 43 MJ 15, 17 n. 2 (1995); United States v. Hamilton, 41 MJ 32, 36 (CMA 1994).
Assuming LCDR Small was the accuser, that would not disqualify him from being the legal officer post-trial. That person is only disqualified if there is a personal interest in the case. See, e.g., United States v. Newman, 14 MJ 474, 482 (CMA 1983)(convening-authority disqualification). In United States v. Rice, 33 MJ 451, 453 (1991), this Court held that it was plain error for the legal officer to prepare the recommendation where he had testified during sentencing in aggravation, because that testimony was sufficient to disqualify him even in the absence of an objection. In Rice, the legal officer “had strong personal feelings or biases about appellant.” Id. at 453. However, in United States v. Caritativo, 37 MJ 175, 183 (1993), this Court held that Caritativo waived his claim of the disqualification of the staff judge *118advocate because he had given advice to the prosecutor and tried to dissuade the defense from certain actions. Likewise, this Court found no plain error in these activities.
Even if LCDR Small was an accuser, United States v. Jeter, 35 MJ 442 (CMA 1992), held that the convening authority’s status as an accuser was nonjurisdictional and could be waived if not raised at trial.
Thus, in addition to any error being harmless, the issue was waived. Accordingly, I dissent.