concurring in the result:
On 16 December 1987, the court remanded this case for a limited hearing to further investigate allegations of improper nomination of members. See United States v. DuBay, 37 C.M.R. 411 (C.M.A.1967). On 13 January 1989, a panel of this court affirmed the findings but found that improprieties in the nominating process affected the sentence. The court set aside the sentence and authorized a rehearing. On 3 February 1989, this court, acting en banc, sua sponte vacated the decision of 13 January and ordered reconsideration of the case.
The appellant contends that he was denied the right to a fair and impartial sentence proceeding because the nomination and selection of members detailed to his court-martial were improper. In support of his contention, the appellant submitted the affidavit of Captain (CPT) David Fierst, the division deputy adjutant general. See Appendix 1. In his affidavit, CPT Fierst maintains that he perceived that the office of the division staff judge advocate wanted him to “select nominees [for courts-martial panels] who were commanders and supporters of a command policy of hard discipline.”
On consideration of CPT Fierst’s affidavit and other evidence taken at the DuBay hearing, the military judge who presided at that hearing entered findings of fact that there was no evidence to support CPT Fierst’s perception that “the [staff judge *650advocate] wanted [him] to select nominees who were commanders and supporters of a command policy of hard discipline.” The military judge further found that the staff judge advocate had correctly advised the convening authority of the lawful, statutory criteria1 for selecting members and that the convening authority had applied the lawful criteria in making his selections. The military judge did find, however, that CPT Fierst himself had selected nominees according to this impermissible criterion.
CPT Fierst had submitted a list of thirty nominees from the division to the office of the staff judge advocate where it was combined with nominations from other organizations to form a combined list of forty-seven names. This list of forty-seven names and an “alpha roster” listing the names of all military personnel in the convening authority’s jurisdiction were submitted to the convening authority for consideration in the selection process mandated by Article 25, UCMJ. The “alpha roster” included three hundred and fifty officers and an unspecified number of enlisted personnel.
Of the thirty persons ultimately detailed to courts-martial panels by the convening authority, the names of twenty-eight appeared on the combined list.2 The names of nineteen others appeared on CPT Fierst’s list. Had the appellant elected to be tried by a court-martial composed of officer members, the names of three of the seven officer members detailed to sit as appellant’s court would have been taken from CPT Fierst’s list of nominees. The appellant waived a trial with officer members and selected trial by military judge alone.
I
Waiver
I find that the appellant’s failure to challenge the array at trial constitutes waiver. The Manual for Courts-martial provides for application of the waiver doctrine to the case at bar. R.C.M. 912(b)(3).3 Accord United States v. Aho, 8 M.J. 236, 237 (C.M.A.1980); United States v. Crawford, 35 C.M.R. 3, 5-6 (C.M.A.1964). Although the utilization of impermissible or improper criteria by those who make nominations for service on courts-martial “may vitiate the selection process,” objection to this type of defect must be made at trial or it is waived. Crawford, 35 C.M.R. at 5, 10. In the case at bar, the appellant has not only failed to challenge the array, he explicitly and without reservation waived his right to court-martial by members and requested trial by judge alone. Cf. United States v. Daigle, 1 M.J. 139, 142 (C.M.A.1975); United States v. Greene, 43 C.M.R. 72, 73 (C.M.A.1970). I recognize that there are circumstances in which application of the waiver rule is inappropriate. However, I find none of these circumstances present in this case.
A
Rule 912(b)(3) provides three specific exceptions to the waiver rule, R.C.M. 501(a),4 502(a)(2),5 and 503(a)(2).6 These exceptions *651are jurisdictional, R.C.M. 201(b)(2),7 and may not be waived. See United States v. McClain, 22 M.J. 124, 127 (C.M.A.1986) (an accused has an absolute right to trial before a properly constituted court with members). See also United States v. Hudson, 27 M.J. 734 (A.C.M.R.1988); United States v. England, 24 M.J. 816, 817 (A.C.M.R.), pet. denied, 25 M.J. 483 (C.M.A.1987). None of these jurisdictional exceptions are applicable to this case.
The court-martial convening order detailed the appropriate number of members required by Article 16, UCMJ, U.S.C. § 816, and R.C.M. 501(a) and the convening authority properly selected the members in accordance with the criteria established by Article 25(d)(2), UCMJ, and R.C.M. 502(a)(1). The court was not convened in violation of Article 25(c)(1), UCMJ, or R.C.M. 503(a)(2) because no request for enlisted members was ever submitted. Defects or improprieties in the nominating process do not fit within the proscriptive language of the Manual and therefore are not jurisdictional impediments that would bar invocation of the waiver rule.
B
Nor would I apply the waiver doctrine where the nominating or selection processes violate military due process.8 For example, it is a violation of due process if a government prosecutor or other partisan government advocate participates in the selection or nominating process.9 See, e.g., Smith, 27 M.J. at 251; United States v. Crumb, 10 M.J. 520, 527-28 (A.C.M.R.1980) (Jones, S.J., concurring). A violation of due process may also occur if a convening authority selects members with the intent to influence the outcome of courts-martial. See, e.g., McClain, 22 M.J. at 131. Unlike the protagonists in the foregoing cases, CPT Fierst was not a “partisan” government advocate but an administrative functionary whose power to influence the prosecutorial or accusatorial decision making process was extremely limited. His “position and responsibilities” as an assistant adjutant general can hardly be compared to those of the prosecutor and staff judge advocate in United States v. Smith and United States v. McClain. Hence, his motives and intent in nominating potential members of courts-martial panels cannot be imputed to the convening authority. Nor is this a case where the convening authority was faced with no practical alternative but to appoint improperly nominated members. See Marsh, 21 M.J. at 448-49; United States v. McCall, 26 M.J. 804 (A.C.M.R.1988). The convening authority con*652sidered not only the thirty nominations of CPT Fierst, but seventeen other nominees and all of the soldiers assigned to his command. This proves that the convening authority exercised personal discretion in selecting the members as he was required to do under Article 25, UCMJ. Consequently, I conclude that appellant was not denied due process.
C
Finally, an accused may avoid the waiver rule either by showing that a failure to consider his claim will result in a fundamental miscarriage of justice or by demonstrating good cause and actual prejudice. Cf. Wainwrigkt v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 reh’g denied, 434 U.S. 880, 98 S.Ct. 241, 54 L.Ed.2d 163 (1977). Although the cause- and-prejudice standard is not limited at law, two clearly defined circumstances have been identified as meeting the standard: newly discovered evidence not reasonably discoverable by the exercise of due diligence prior to trial, United States v. Thomas, 11 M.J. 135 (C.M.A.1981),10 and ineffective assistance of counsel. United States v. Howes, 22 M.J. 704 (A.C.M.R.1986).
The majority holds the waiver doctrine inapplicable in the instant case. In so holding, they rely on the fact — which I do not dispute — that CPT Fierst’s criteria were not discovered until after trial when CPT Fierst volunteered the information. Citing United States v. Smith, 27 M.J. 242 (C.M.A.1988), the majority finds that the challenged selection procedure could not have reasonably been discovered by the exercise of due diligence. The majority also relies on the fact that the matter was set forth in a post-trial submission. The majority deems this post-trial submission a request for relief. None of these findings can be supported by the record.
(1)
The appellant offers no reasonable basis for his failure to timely discover CPT Fierst’s improper motive in choosing divisional nominees and I perceive none. It is apparent from the record that the appellant made no inquiry whatsoever into the nominating processes which attended his ease; therefore, I find that the appellant did not exercise due diligence at the time of trial. See Thomas, 11 M.J. at 137. The appellant argues in part that the facts of his ease as in Smith, “demonstrate [that] the discovery of improper nominating procedures are [sic] often fortuitous” and implies that he should be held blameless for not discovering such infirmity. I do not agree. When an accused who is represented by a qualified attorney makes no inquiry whatsoever into the selection and nominating processes, he runs the risk that such ignorance may preclude him from effectively challenging the array. This is no different from one who fails to conduct adequate pretrial discovery in order to challenge the individual court members under R.C.M. 912(f)(1). See R.C.M. 912(f)(4). I see no reason to apply a different standard here.
Despite the fact that the appellant neither alleges nor offers evidence that the infirmity could not have been discovered, the majority nevertheless finds, on the basis of Smith, that CPT Fierst’s role in the nominating process could not have been discovered by the exercise of due diligence. The Smith decision affords no support for this conclusion. The facts of the Smith ease did not require a determination whether the appellate issues had been waived because the issues of that case — court-packing by the convening authority and participation by a partisan government counsel in the process — were not susceptible to application of the waiver doctrine. See Smith, 27 M.J. at 251 (Cox, J., concurring).
However, two cases decided by the United States Supreme Court abundantly illustrate the discoverability of such defects and establish clear precedent for applying the doctrine to the facts of the case at bar. In Shotwell Mfg. Co. v. United States, 371 *653U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357, reh'g denied, 372 U.S. 950, 83 S.Ct. 931, 9 L.Ed.2d 975 (1963), the appellants asserted on the basis of newly discovered evidence that the jury commissioner improperly delegated his selection duties to a subordinate, that volunteers were permitted to serve on the juries, and that the clerk of the district court utilized constitutionally deficient criteria in selecting the venire. Shotwell Mfg. Co., 371 U.S. at 361-362, 83 S.Ct. at 460. In that case, as in the case at bar, the appellants argued that the alleged illegalities were “not readily noticeable.” Id. at 362, 83 S.Ct. at 460. The Shotwell Court held that the facts concerning jury selection were open and notorious and “available to the petitioners in the exercise of due diligence before the trial.” Id. at 363, 83 S.Ct. at 461. That Court further held that the failure to object in a timely manner further required a showing of specific prejudice. Id. In Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), the holding in Shotwell was reaffirmed in the strongest terms. The Davis Court held that an allegation of racial discrimination in the composition of a grand jury, a substantial constitutional right, was waived by failure to assert the matter at trial. Davis, 411 U.S. at 243-45, 93 S.Ct. at 1583-84. The Davis Court quoted with approval the District Court’s holding that “[n]o reason has been suggested why petitioner or his attorney could not have ascertained all of the facts necessary to present the objection to the court prior to trial.” Id. at 243, 93 S.Ct. at 1583. The matters now urged by the appellant were no less discoverable than those in Shotwell and Davis.
Simple pretrial investigation would have revealed CPT Fierst’s identity and role in the nominating process. In addition to pretrial investigation, a panoply of discovery vehicles are available to trial defense counsel to ferret out improprieties in the nominating and selecting processes. See R.C.M. 701(a)(2)(A); R.C.M. 702. The Manual itself creates the right to access the processes underlying the selection of members upon a de minimis showing. R.C.M. 912(b)(2).11
I can conceive of situations where bad faith on the part of the government could frustrate an accused in his pursuit of information upon which to challenge the array. However, there is neither evidence of record nor allegation that the nominating process in the case at bar was accomplished by some cabal or that there was some conspiracy to insulate the process from defense investigation and judicial review. There is no evidence to suggest that CPT Fierst’s participation in the nominating process was anonymous or that his role in the nominating process could not have been discovered. The criteria upon and intent with which he made his nominations were susceptible to inquiry or examination under oath either by pretrial deposition or by examination during pretrial session upon a requisite showing under R.C.M. 912(b)(2).
(2)
I also find that appellant was adequately represented prior to and during trial and that his counsel’s failure to discover CPT Fierst’s motive does not warrant relief from the waiver rule. Although the infirmity in the nominating process was not discovered prior to trial, appellant’s counsel learned about it after trial and before the case was submitted to the convening authority for approval. Assuming that the evidence was newly discovered, the appellant had several options available to him at that point. First, he could have raised the infirmity as an allegation of error affecting the legality of the conviction and sentence. See R.C.M. 1105(b)(1). Second, he could have requested the convening authority order a post-trial session for the purpose of inquiring into the legal infirmity. See *654R.C.M. 1102(b)(2). Third, he could have made the same request of the military judge. See R.C.M. 1102(a).
The majority finds that the appellant “raised the question” in his post-trial submission but suggests that “his request for relief was denied.” This representation misstates the facts because the appellant did not affirmatively assert the matter as a legal error in the proceeding. Instead, he made a tactical decision to exploit the infirmity in seeking clemency from the convening authority. Counsel’s post-trial submission on behalf of the appellant states:
In preparation for trial, the question of forum, the [appellant’s] right to be tried by a panel of officers, enlisted members or by judge alone, was of primary concern. Once the case was referred, the panel selected was viewed as a “severe” one, and, as such, the decisions indicated at trial [to forego trial by members] were made. Since the date of the trial, information has arisen that calls into question the validity of the selection of the officer and enlisted members of that panel and the original array itself, (attachment 1)[12]
Since selection of panel members as the deliberative body of the court martial [sic] is so critical, the mere hint of taint should be sufficient to warrant a remedy of clemency in the post trial [sic] action. Based on this, combined with the 106 days of restriction without civilian clothes privileges [sic], his plea of guilty and the youth and clear potential for productive service for the remainder of his life, the defense asks that the punitive discharge not be approved and that the [appellant’s] sentence be reduced to the amount of time served since trial.
This tactical decision to exploit the matter raised by CPT Fierst’s affidavit in a bid for clemency rather than a sentence rehearing was entirely reasonable. His tactical decision should not be second-guessed. United States v. Rivas, 3 M.J. 282 (C.M.A.1977).
D
The judicially created doctrine of waiver and the legislative — or, in this instance, executive — rules of procedural default are not fashioned with the intent to impose unjust or harsh results on individuals convicted of offenses. Rather, they are integral, necessary features of sound administration of the criminal justice system. For some accuseds there would be, in the absence of waiver, little inclination to actively pursue their rights on their “day in court.” Accord Davis, 411 U.S. at 241, 93 S.Ct. at 1582. Instead, negligent, good faith omissions and deliberate, bad faith failures in asserting rights would be rewarded. Whether the failure is in good or in bad faith, the dangers in a contrary rule are obvious: the Government would be prejudiced by the necessity of prosecuting stale cases and the courts would be frustrated by the endless and burdensome relitigation of cases in the attempt to attain a perfect trial. Cf. Kuhlmann v. Wilson, 477 U.S. 436, 453, 106 S.Ct. 2616, 2626, 91 L.Ed.2d 364 (1986). Under these circumstances, finality of judicial proceedings would be difficult to attain.
Accuseds and their attorneys have ample opportunity to acquaint themselves with information and to gather evidence upon which to challenge the array. The standard imposed by R.C.M. 912 is not unduly burdensome. The waiver rule is itself limited in application to circumstances where, as in this case, irregularities of nebulous and questionable impact attend the nominating process. Weighing these factors against the detrimental effects of an opposite rule on the criminal justice system, the waiver rule of R.C.M. 912(b)(3) is entirely reasonable. There is no paucity of published opinions applying waiver to facts and circumstances not dissimilar to those of the case at bar. See, e.g., Marsh, 21 M.J. at 448, 450; United States v. Wilson, 21 M.J. 193, 197 (C.M.A.1986); United States v. Benoit, 21 M.J. 579, 580 (A.C.M.R.1985). Waiver of objections to the composition of juries is statutorily mandated and judicially *655recognized in federal criminal practice. 28 U.S.C. § 1867(a) (1982); see, e.g., United States v. Grose, 525 F.2d 1115, 1118-19 (7th Cir.1975), cert. denied, 424 U.S. 973, 96 S.Ct. 1477, 47 L.Ed.2d 743 (1976). The United States Supreme Court has approved application of the waiver doctrine to allegations of improper composition of the grand jury, Davis, 411 U.S. at 242, 93 S.Ct. at 1582, and to alleged violations of equal protection in the selection of juries. See Allen v. Hardy, 478 U.S. 255, 261, 106 S.Ct. 2878, 2881, 92 L.Ed.2d 199 (1986). Accordingly, I find that the appellant’s challenge to the nominating process in the case at bar has been waived.
II
Effect of Error
I also part company with the majority resolution of the case because the taint occasioned by CPT Fierst’s participation was “dissipated.” Assuming that the infirmity had not been waived by inaction at the trial level, the appropriate standard of review is whether the appellant was prejudiced. See Smith, 27 M.J. at 242: Applying this standard, I find no prejudice. UCMJ art. 59(a), 10 U.S.C. § 859(a).
Unlike Daigle and Greene, this record of trial reveals no evidence or representation which would justify an inference that the appellant abandoned his right to a court composed of members in order to avoid sentencing by improperly nominated or selected members.13 See Daigle, 1 M.J. at 142 (C.M.A.1975); Greene, 43 C.M.R. at 73 (C.M.A.1970). Although the court has accepted numerous post-trial affidavits and ordered a post-trial hearing to investigate the issue at bar, the appellant has not offered any competent evidence that the composition of the court deterred him from exercising his right to be sentenced by fair and impartial members.
The appellant’s briefs do not assert that his decision to forgo sentencing by members was in fact the result of the composition of the panel. His initial brief in the case does assert that he “was compelled to abandon his right to trial by members because of their improper selection”; however, he simultaneously contends that he was “unaware of the improper selection process at the time” of trial and only asserts that “the presence of such a ‘severe’ panel may have impacted” on his selection of forum. A subsequent brief sets forth an additional assertion that only “in essence” was he forced to abandon his statutory right to trial before court members. All of these arguments are directed only toward establishing a case of general prejudice.
Most persuasive, however, is the evidence of record. The conduct — or lack thereof — of appellant’s defense counsel in investigating this purportedly “severe” panel belies the assertion that the composition of the panel motivated the appellant’s election of forum. This failure justifies “drawing any reasonable inferences against him with respect to factual matters not fully developed in the record of trial.” Cf. United States v. Lockwood, 15 M.J. 1, 7 (C.M.A.1983). The record reveals no nexus between the appellant’s election of trial by judge alone and the infirmity in the nominating process. I find that the appellant’s election of forum was not influenced by the composition of the panel. Accordingly, for the foregoing reasons, I concur in the result reached by the majority in this case.
Senior Judge DeFORD concurs in Judge WERNER’s opinion.. UCMJ art. 25.
. The record is not clear whether these other two individuals were selected from the “alpha roster” or independent of the lists submitted.
. R.C.M. 912(b), "Challenge of selection of members,” provides in pertinent part:
(1) Motion. Before the examination of members [voir dire] ... begins, or at the next session after a party discovered or could have discovered by the exercise of diligence, the grounds therefor, whichever is earlier, that party may move to stay the proceedings on the ground that members were selected improperly.
(3) Waiver. Failure to make a timely motion under this subsection shall waive the improper selection unless it constitutes a violation of R.C.M. 501(a), 502(a)(1), or 503(a)(2).
. R.C.M. 501(a)(1) provides that general courts-martial shall be composed of a military judge and not less than five members or a military judge alone. R.C.M. 501(a)(2) provides that special courts-martial shall be composed of (A) not less than three members; (B) a military judge and not less than three members; or (C) a military judge alone. See UCMJ art. 25(c)(1).
. R.C.M. 502(a)(1) provides for selection of members in accordance with the Congressional mandate of Article 25, UCMJ, which requires a convening authority to detail as members those *651best qualified according to age, education, training, experience, length of service, and judicial temperament. See UCMJ art. 25(d)(2).
. See note 6 on page 651.
*6516. R.C.M. 503(a)(2) provides that an enlisted accused may not be tried by a court composed of less than one-third enlisted members if he so requests. See UCMJ art. 25(c)(1).
. R.C.M. 201(b)(2) provides in pertinent part: [F]or a court-martial to have jurisdiction:
(2) The court-martial must be composed in accordance with these rules with respect to number and qualifications of its personnel.
. In Smith, 27 M.J. at 251, a case involving prosecutorial participation in the nominating and selection process, the Court of Military Appeals reversed on the basis that an "appearance of evil” attended the conviction which resulted in public suspicion of the court-martial process. We do not believe that our review of a case should be influenced by the mere popularity or unpopularity of trial results. We believe that the "traditional notions of justice and fair play” standard of a due process analysis provide a more legally sound basis for setting aside a conviction attended by such circumstances. Cf. United States v. Marsh, 21 M.J. 445, 450 (C.M.A.), cert. denied, 479 U.S. 1016, 107 S.Ct. 666, 93 L.Ed.2d 719 (1986) (the detailing process did not "create an impression which undermines the fairness and integrity of the military-justice system”); Daigle, 1 M.J. 139, 140 (C.M.A.1975) (“Discrimination in the selection of court members on the basis of improper criteria threatens the integrity of the military justice system”).
. Although this does not constitute a per se violation of due process, the Government has a heavy burden of demonstrating that the participation "ultimately had no impact on the fairness of the court.” Smith, 27 M.J. at 251. In Crumb, where the trial counsel only recommended selection of replacement members, Senior Judge Jones stated, “It is only through the searching examination at trial of two of the participants in the procedure that I am satisfied that the selection process was fair and without prejudice to the appellant.” Crumb, 10 M.J. at 528.
. R.C.M. 912(b)(1) creates a trigger for the procedural default of R.C.M. 912(b)(3) providing, in effect, for application only at the time the accused “discovers or should have discovered, by the exercise of diligence, the grounds” for a challenge to the array.
. R.C.M. 912(b)(2) provides in pertinent part: Upon a motion ... containing an offer of proof of matters which, if true, would constitute improper selection of members, the moving party shall be entitled to present evidence____ (emphasis added). This standard is substantially lower than that required by the federal counterpart of R.C.M. 912(b)(2) which requires a "sworn statement of facts which, if true" would constitute noncompliance. 28 U.S.C. § 1867(d) (1982).
. Attachment 1 to appellant's post-trial submission was the affidavit wherein CPT Fierst made his initial admissions concerning his role in the nominating process.
. The appellant’s post-trial submission, attached to the record as an allied paper, does recite that "once the case was referred, the panel selected was viewed as a ‘severe’ one, and, as such, the decisions indicated at trial [to forgo trial by members] were made.” The staff judge advocate's addendum to the post-trial advice indicates, however, that the election of trial by judge alone was a sub rosa offer to induce acceptance of the appellant’s offer to plead guilty. Neither of these documents were made under oath nor are they properly a part of the record; thus, they are not competent evidence from which to find or infer a forebearance of the right to trial by members because of severity in the panel.