(dissenting):
The Court concludes that Captain Major did not have the “necessary objectivity to perform his post-trial responsibilities and exercise his unique discretion as a convening authority under Article 60.” 45 MJ at 162.
In the referral and post-trial areas, the convening authority is not disqualified unless he or she is an accuser, see, e.g., United States v. Shiner, 40 MJ 155 (CMA 1994); United States v. Byers, 37 MJ 73 (CMA 1992) (summary disposition), or has a personal interest in the case, United States v. Nix, 40 MJ 6 (CMA 1994) (convening authority had a personal grudge because of the defendant’s remark to his fiancee). Neither has been established here.
This convening authority would not be disqualified under the even stricter neutral and detached magistrate rules applied to commanders in authorized searches. See, e.g., United States v. Freeman, 42 MJ 239, 240, 242 (1995).
The majority also holds that Captain Major’s comments constituted a violation of Article 37(a), Uniform Code of Military Justice, 10 USC § 837(a). 45 MJ at 162. In establishing a violation of Article 37(a), as this Court has repeatedly said, first, appellant must establish that the remarks showed a lack of objectivity and were not just an unfortunate choice of words, and second, that they had an impact on the proceedings. United States v. Ayala, 43 MJ 296, 299-300 *164(1995), and cases cited therein. Because this issue was not raised below, it has not been fully litigated.
Since the record is not fully developed, I would feel more comfortable if we sent this record back for a United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967), hearing to determine (1) why defense counsel did not raise the issue of disqualification of the convening authority; and (2) whether the convening authority was biased against appellant or whether he used an inappropriate and poor choice of words in expressing his frustration with the exclusionary rule.