(dissenting):
Because the majority opinion appears to be inconsistent with our prior case law on multiplicity and waiver, I dissent.
Pursuant to a pretrial agreement, appellant agreed to plead guilty to “[a]ll Charges and specifications.” She also agreed that “[m]y counsel have fully advised me of the nature of the charges and specifications ... and the effect of the guilty plea____”
When appellant was advised that any motions to dismiss or grant other relief should be made prior to the plea, individual defense counsel responded that there would be a motion for “multiplicity for sentencing, which does not have to be officially made at this time.”
After acceptance of the pleas, counsel made a motion to consider the charges and specifications multiplicious for sentencing. The trial judge granted the motion.
As the Supreme Court stated in United States v. Mezzanatto, 513 U.S. 196, 201, 115 S.Ct. 797, 801, 130 L.Ed.2d 697 (1995), “[A]b-sent some affirmative indication of Congress’ intent to preclude waiver, we have presumed that statutory provisions are subject to waiver by voluntary agreement of the parties.” This presumption in favor of waivers is set forth in the Manual for Courts-Martial, United States (1995 ed.). The general rule is that *30failure to make a motion constitutes waiver. ROM 905(e), Manual, supra.
Multiplicity is not a “non-waivable ground.” RCM 907(b)(1); see United States v. Collins, 41 MJ 428 (1995); United States v. Kreitzer, 2 USCMA 284, 8 CMR 84 (1953); Fed.R.Crim.P. 12(b). The cases cited by the majority do not preclude waiver or forfeiture. In any event, the offenses are not multipli-cious. Where the elements set forth in Part IV of the Manual are not inconsistent with our case law, we will examine those elements in determining multiplicity. United States v. Oatney 45 MJ 185,188 (1996). The elements of the specification of Charge I are as follows:
(1) That, at Grand Forks Air Force Base, North Dakota, on various occasions between October 8, 1993, and November 16, 1993, appellant was a commissioned officer;
(2) That between October 8,1993, and November 16, 1993, appellant fraternized on terms of military equality with [GB] by having a close personal relationship, to include hugging, kissing, and engaging in sexual intercourse;
(3) That appellant then knew [GB] to be an enlisted member;
(4) That such fraternization violated the custom of the Air Force that officers shall not fraternize with enlisted members on terms of military equality; and
(5) That, under the circumstances, the conduct of appellant was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
See para. 83b, Part IV, Manual, supra.
The elements of the specification of Charge II are as follows:
(1) That, at Grand Forks Air Force Base, North Dakota, between October 8, 1993, and November 16, 1993, appellant wrongfully and dishonorably had a close personal relationship with [GB] to include hugging, kissing, and engaging in sexual intercourse;
(2) That, under the circumstances, these acts constituted conduct unbecoming an officer.
See para. 59b, Part IV, Manual, supra.
Paragraph 59e(2) states: “This article [133] includes acts made punishable by any other article, provided these acts amount to conduct unbecoming an officer and a gentle-man____ [T]he additional requirement is that the act or omission constitutes conduct unbecoming an officer and a gentleman.” United States v. Rodriquez, 18 MJ 363 (CMA 1984), cited by the majority, relies in part on United States v. Baker, 14 MJ 361 (CMA 1983), which has been overruled. United States v. Triers, 37 MJ 370 (CMA 1993). Thus, applying a “statutory” elements approach or a pleading-elements approach, these offense are not multiplicious.