(concurring in part and dissenting in part) :
I disagree with the scope of Article 44, Uniform Code of Military Justice, 10 USC § 844, as implied in the principal opinion. Suffice it to note, for example, that, as intimated in the principal opinion, Article 44(b) would authorize retrial of an accused for murder when he had been found guilty only of manslaughter but it had been determined on review that prejudicial error requiring a rehearing had been committed. Yet a rehearing on that basis is constitutionally impermissible. Green v United States, 355 US 184, 2 L Ed 2d 199, 78 S Ct 221 (1957); see also Benton v Maryland, 395 US 784, 23 L Ed 2d 707, 89 S Ct 2056 (1969).
As to the specific issue of this appeal, this Court has long insisted upon a higher standard of representation by counsel than that his conduct be “ridiculous and empty.” See United States v Huff, 11 USCMA 397, 400, 29 CMR 213 (1960). The trial judge “is best situated intelligently” to evaluate *59the circumstances presenting a question for a mistrial. Gori v United States, 367 US 364, 368, 6 L Ed 2d 901, 81 S Ct 1523 (1961). If the trial judge erred in concluding that individual military counsel had ineffectively represented the accused, his determination was not so unsupported by the facts as to justify, in my opinion, setting aside his determination as an abuse of discretion. In dealing with the adequacy of counsel “nice calculations as to the amount of prejudice” are to be avoided. Glasser v United States, 315 US 60, 76, 86 L Ed 680, 62 S Ct 457 (1942). It is apparent to me that the trial judge followed that principle.
Ineffective assistance of counsel is certainly ground for declaration of a mistrial. It follows that the critical question is whether ground for mistrial being present the judge should have limited his ruling to the sentence proceedings. Inadequacy during sentence proceedings may cast substantial doubt upon the facial adequacy of counsel’s representation of the accused in connection with the merits. See United States v Huff, supra, at page 403. Considering defense counsel’s admitted insufficiency of preparation in connection with the sentence, the trial judge could reasonably have concluded that counsel was also inadequate in his preparations in connection with the merits. Also, there is ample support in our cases for ordering in a particular case a rehearing of the entire cause where the prejudicial error occurs during the sentence proceedings. United States v Huff, supra.
For the reasons indicated, I concur in the conclusion that retrial of the accused was not improper.