Opinion of the Court
GEORGE W. Latimer, Judge:Upon his plea of guilty, a general court-martial convicted accused of receiving stolen property, a violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. He was sentenced to confinement at hard labor for six months and partial forfeitures for a like period, and, except for a slight reduction in the amount of forfeitures, the convening authority approved. Pursuant to Article 69, Uniform Code of Military Justice, 10 USC § 869, The Judge Advocate General of the Army referred the record to a board of review, which concluded as a matter of law that the law officer was not competent to serve and that there was no properly constituted court-martial. Accordingly, it set aside both the findings and sentence and ordered a rehearing, Thereafter, the Acting The Judge Advocate General of the Army certified the following two issues to this Court for our consideration:
“(1) Was the board of review correct under the circumstances of this case in holding that the accused could not waive the fully disclosed disqualifications of the law officer?
“(2) If the board of review was correct in holding that there was a jurisdictional defect with the result that there was no properly constituted court-martial, did it err in ordering a ‘rehearing,’ thus effecting a continuation of the former proceeding, instead of directing another trial in the nature of a completely new an independent proceeding?”
The facts germane to our inquiry are simple and undisputed. After the court-martial had convened, and prior *575to the time accused entered his plea of guilty, the law officer volunteered the information that he believed himself subject to challenge. He stated he was familiar with the evidence in this and in two companion cases, had presided as law officer in one of the companion - cases, and further had participated in the preparation of charges in the instant case. After making this full disclosure, he inquired if the defense wished to exercise the right to challenge him for cause. Accused and trial defense counsel both expressly announced they did not wish to challenge him and, in answer to direct questions, stated the accused waived his right in that regard.
The question presented for resolution by the first certified issue is not new to this Court. We have decided several cases involving a similar problem, and a consideration of those opinions dictates the conclusion we reach.
In United States v Renton, 8 USCMA 697, 25 CMR 201, the law officer had assisted in drafting the charges. Defense counsel’s challenge against the law officer, which was predicated on that pretrial activity, was not sustained. We there held that accused was prejudiced by the failure to sustain the challenge, commenting:
. . We can only look with complete disapproval upon the conduct of a law officer who actively assists the prosecution prior to trial and then subsequently attempts to sit in the case as a disinterested arbiter.”
And the conciurring opinion in that ease characterized the law officer’s prior participation as that of a counsel for the Government, thus rendering him ineligible to serve in light of paragraph 62/(6), Manual for Courts-Martial, United States, 1951, and Article 26 (a), Uniform Code of Military Justice, 10 USC § 826, which states no person shall be eligible to serve as law officer when he has acted as counsel in the same case.
Here, as in Renton, supra, the law officer also helped draft the charges against accused. Moreover, he stated he was familiar with the evidence and he had presided at the trial of a closely related case. See paragraph 62/(18) of the Manual, supra. Accordingly, were there no differentiating facts in the case at bar, our holding in Renton would be dispositive. In the instant proceeding, however, after having been fully apprised of his activities, the defense not only failed to object but in fact expressly waived any challenge against the law officer.
Article 25(d) (2) of the Code, 10 USC § 825, provides in part:
“. . . No member of an armed force is eligible to serve as a member of a general or special court-martial when he is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same case.”
and Article 26(a) of the Code, supra, sets forth the same provision with respect to law officers. However, as a majority of the Court pointed out in United States v Mortensen, 8 USCMA 233, 24 CMR 43, there is a difference between a lack of statutory qualification as distinguished from eligibility set out in Article 26(a). And it is clear that the prior participation by a law officer in any activity listed in the relevant portion of that subarticle does not raise such a bar to his acting at trial that it cannot be waived, for in United States v Beer, 6 USCMA 180, 19 CMR 306, we held the right to question a court member’s eligibility to participate could be cast aside by “an intelligent and conscious waiver.” Likewise, in United States v Hurt, 8 USCMA 224, 24 CMR 34, where a court member had previously acted as counsel in the case, this Court held unanimously that any ineligibility had been knowingly waived, for the defense had been fully apprised of the situation and expressly stated they had no objection to the court member. See also United States v Turner, 9 USCMA 124, 25 CMR 386. Certainly there is no difference between the pertinent language of Articles 25 and 26 of the Code, supra, and thus there is no question but that a law officer’s ineligibility, like that of a court member, may be similarly waived. This conclusion is borne out by our opinion in United States v Wil*576son, 7 USCMA 656, 23 CMR 120. There the law officer became a witness for the prosecution, but we refused to invoke the doctrine of waiver, for:
“. . . Rather than affirmatively-agreeing to the law officer’s continuing to act in that capacity after he had become a witness for the prosecution, defense counsel failed to act at all with regard to challenge. Thus, we have no reason to suppose that counsel intended a knowing waiver of his ground for challenging the law officer.”
See also United States v Moore, 4 USCMA 675, 16 CMR 249.
We conclude in the ease at bar, therefore, that the defense, by declining to challenge, waived any ineligibility on the part of the law officer by reason of his knowledge and pretrial activity. We do not at all have a mere uninformed failure to act or unknowing acquiescence, but rather the very essence of waiver, for the matter was specifically invited to the attention of accused and his counsel, and armed with full knowledge they nonetheless deliberately and consciously declined to challenge the law officer and expressly and unreservedly waived that right. Under those circumstances, the language used by the late Judge Bros-man in United States v Beer, supra, is applicable to the instant case:
“. . . if I ever saw an express and informed waiver, I find it here.”
Accordingly, the board of review erred in holding that there was no properly constituted court-martial, and the first certified question must be answered in the negative. That being so, there is no occasion to answer the second question certified. It is rendered moot, for the decision of the board of review must be reversed. It is so ordered, and the record is returned to The Judge Advocate General of the Army for reference to a board of review for further proceedings not inconsistent with this opinion.
Chief Judge Quinn concurs.