(concurring in the result):
The ex post facto issue in this case boils down to whether a duck is still a duck even though some bird expert calls it a bald eagle.
I agree that the amendment to Article 57, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 857, which moved up the effective date of monetary forfeiture and reduction in grade punishments was only an “administrative” change which does not violate the Constitution’s Ex Post Facto Clause. See U.S. Const, art. I, § 9, cl. 3. However, I disagree with the majority’s analysis with respect to the new Article 58b provision.
Article 58b escalates some sentences by imposing an automatic monetary forfeiture even though no forfeiture, or a sum below the statutory amount, was adjudged at trial and the offense occurred before the provision’s enactment. 10 U.S.C. § 858b. This new automatic forfeiture provision looks like, acts like, and smells like an ex post facto law (the duck) despite anyone’s attempt to call it an “administrative consequence” of a sentence (a bald eagle). Nevertheless, I concur in affirming this case because appellant knowingly waived the issue.
Article 58b and Ex Post Facto
In 1798, the Supreme Court laid down some very simple tests for determining whether Congress passed a prohibited ex post facto law:
1st. Every law that makes an action, done before passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.
Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648 (1798) (Justice Chase). See also Beazell v. Ohio, 269 U.S. 167,169-170, 46 S.Ct. 68, 68-69, 70 L.Ed. 216 (1925).
While the Supreme Court has tinkered with these tests over the last two centuries, today we apply the same fundamental ex post facto analysis set out in 1798. See California Department of Corrections v. Morales, — U.S. -, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). The new Article 58b, effective for trials on or after April 1,1996, fails the third test in some cases by automatically “inflict[ing] a greater punishment” on an accused for an offense committed before its enactment.
Under the new provision, accused who are sentenced to more than 6 months confinement, or any confinement and a punitive discharge, now receive a monetary forfeiture of all pay and allowances in a general court-martial, and two-thirds pay in a special court-martial, by operation of law, a situation that did not exist under the UCMJ before April 1, 1996. In effect, the provision increases an accused’s adjudged sentence by adding maximum monetary forfeitures to the sentence even if no forfeiture, or an amount below the statutory sum, was adjudged at trial. Where the accused committed the offense before the effective date of the new provision, the statute “inflicts greater punishment, than the law annexed to the crime, when committed.” Calder v. Bull, 3 Dali, at 390, 1 L.Ed. 648.
The majority calls this punishment escalator an “administrative consequence” and cites United States v. Powell, 30 C.M.R. 288, 1961 WL 4439 (C.M.A.1961). I agree that over 30 years ago, the Court of Military Appeals, now the Court of Appeals for the Armed Forces, with one judge dissenting, used that language in Powell when concluding that the automatic reduction in grade provision of Article 58a, UCMJ, 10 U.S.C. § 858a, which Congress enacted on July 12, 1960, did not increase an adjudged sentence. However, the Court specifically did not address the ex post facto issue in its opinion; therefore, I do not feel Powell dictates the label we place on Article 58b.
Even if Powell does control, I urge the Court of Appeals for the Armed Forces to treat the issue differently these three decades later. It appears pretty clear to me *576that the automatic reduction was also an ex post facto law if it was used to reduce an accused to the lowest enlisted grade when the accused committed the offense before Article 58a’s effective date and was not sentenced to such a reduction at trial. To say that the statute did not increase that accused’s punishment after the offense was committed, but merely worked an “administrative consequence,” is calling a duck, a bald eagle. See Powell, 30 C.M.R. at 290 (Latimer, J., dissenting).
In this regard, the services have their own methods of “administratively” demoting enlisted members separate and apart from the military criminal code. See Air Force Instruction 36-2503, Administrative Demotion of Airmen (Jul.1994). Moreover, the language of Articles 58a and 58b embrace terms of punishment which a court-martial may adjudge, “reduction” and “forfeiture.” See R.C.M. 1003. And, both provisions were enacted as changes to the military’s basic criminal code, not some pure fiscal statute controlling the payment or grade of service members. Cf. United States v. Cleckley, 23 C.M.R. 307, 1957 WL 4485 (C.M.A.1957) (construing fiscal law providing for automatic total forfeitures of anyone serving confinement while pending a dishonorable discharge).
In conclusion, the constitutional ex post facto limitation here is simple. Congress may change a sentencing scheme to make it more burdensome on an accused, but may not apply the change to an offense committed before the legislation’s enactment if the change (1) increases the maximum punishment for the offense, or (2) increases the effective minimum punishment or “floor” for the offense. See Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (increase in presumptive sentencing range from 3 ½-4 ½ years to 5 ½-7 years was an increase in the quantum of punishment).
Here, Congress effectively increased the floor for some individuals by making maximum forfeiture of pay an automatic part of their sentence even if a forfeiture was not adjudged at trial, or was adjudged in a lesser sum. If Congress may enact “automatic” punishments of reduction and forfeiture, and impose them for offenses committed before its legislation, Congress may also enact automatic terms of imprisonment for offenses committed before its legislation. Did our founding fathers really intend for that to occur? I hope not.
Standing
I agree with the majority that appellant has standing to contest the application of Article 58b to his case in light of the military judge’s explanation to him about the new provision. However, I offer a few additional comments. The government argues in this ease, and many companion cases, that an appellant must show finance officials actually collected money under the new statute before the appellant may argue any “prejudice” from the new provision. I put the burden on the other foot by applying the usual presumption of regularity in the conduct of governmental affairs — if a statute says an accused must forfeit something then I presume the government’s employees took the necessary steps to accomplish that task absent evidence to the contrary. See United States v. Masusock, 1 C.M.R. 32, 1951 WL 1504 (G.M.A.1951).
Waiver
While appellant has standing to contest the application of Article 58b to his case, he waived that issue by not raising it until his case landed at our doorstep. In explaining the consequences of appellant’s guilty plea, the military judge told appellant that the new Article 58b mandated forfeitures “to the jurisdictional limits” of the court if the sentence included a punitive discharge in conjunction with confinement. Appellant indicated that he understood. The judge added that it “would be likely [he] would be announcing forfeitures to the jurisdictional limits that are mandated” if he adjudged a punitive discharge and confinement, and offered counsel an opportunity to “make any comment at a later time on that point.” Defense counsel offered no comment then, or later, nor did appellant.
Whether an issue survives for appellate review when not raised below depends on whether it was waived or merely forfeited. *577“Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993).
An issue which is merely forfeited may survive on appeal because of the plain error doctrine. Under the plain error doctrine, an appellate court will grant relief despite a forfeiture if the asserted error was obvious, substantial, and had an unfair prejudicial impact on the case. Olano. However, appellate courts do not apply the plain error doctrine when an appellant knowingly and intelligently waives an issue unless the law expressly provides that the issue may not be waived. See United States v. Strachan, 35 M.J. 362, 364 (C.M.A.1992), cert, denied, 507 U.S. 990, 113 S.Ct. 1595, 123 L.Ed.2d 159 (1993); United States v. Pagel, 40 M.J. 771, 776 (A.F.C.M.R.1994); United States v. Spears, 39 M.J. 823 (A.F.C.M.R.1994).
For example, under military law, issues of lack of jurisdiction and failure to state an offense, R.C.M. 907(b), and unlawful command influence, United States v. Blaylock, 15 M.J. 190 (C.M.A.1983), are never waived. Thus, an ex post facto claim that a law fails the first Calder test by making something criminal that was innocent when done could not be waived — the same should not hold true for an issue involving a question of mere dollars and cents under the third test in Calder.
Absent some express, binding judicial, legislative, or executive guidance, however, we should not encourage accused to forego timely objections and motions to correct issues when first confronted with them. Otherwise, we promote piecemeal litigation which doesn’t serve the public interest. See United States v. Huffman, 40 M.J. 225, 228-29 (C.M.A.1994) (Crawford, J., dissenting in part and concurring in the result).
Here, the judge gave appellant and his counsel the opportunity to make ah informed decision on whether to pursue any issue concerning the statutory forfeitures in this case, at trial or during the post-trial review process. Appellant and his counsel elected not to raise the issue, and appellant does not claim that his counsel was ineffective in his representation by failing to do so. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (standard for ineffective assistance of counsel claims). Consequently, I conclude appellant waived the ex post facto issue in this case, and I join in affirming the findings and sentence.