(concurring in part/dissenting in part):
I disagree with the standard set out in the principal opinion as the basis for determining the disqualification of the staff judge advocate to participate in the post-trial review required by Article 61, Uniform Code of Military Justice, 10 U.S.C. § 861, when his earlier action on the pretrial advice, required by Article 34, UCMJ, 10 *260U.S.C. § 834, has been challenged at trial by the accused. My opinion is that the test of disqualification is as stated in United States v. Engle, 1 M.J. 387 (C.M.A.1976). In other respects, I agree with the Court’s disposition of the issue.
As to the disqualification of the Article 32 investigating officer to conduct the hearing on the threat offense, I believe the proper guideline is not to be found in the contempt power, but in the grounds of disqualification provided by the Uniform Code for a military judge, specifically, Article 26(d), UCMJ, 10 U.S.C. § 826(d), and in the grounds of challenge for participants in courts-martial proceedings in the Manual for Courts-Martial, United States, 1969 (Revised edition). One of the enumerated statutory grounds of disqualification is that the judge had previously “acted as investigating officer ... in the same case.” While Article 26, by its terms, applies to a military judge, I believe the specified grounds of disqualification can properly be applied to the Article 32 investigating officer, who, like a trial judge, is by law required to be “impartial.” Here, the investigating officer had made some inquiry into the matter, but that was incident to the proper conduct of the proceedings he was conducting, and I do not believe he acted as an investigating officer as to the threat offense, within the meaning of Article 26. See United States v. Lee, 1 U.S.C.M.A. 212, 2 C.M.R. 118 (1952). However, I am troubled by the investigating officer’s declaration as to the credibility of the hearing reporter. It is so expressive of a fixed opinion as to leave me insufficiently assured that it would later “easily yield to the evidence.” United States v. Deain, 5 U.S.C.M.A. 44, 49, 17 C.M.R. 44, 49 (1954). See paras. 62f (10) and (13), Manual, supra. I conclude, therefore, that the accused’s motion for a new investigation of the threat charge should have been granted.
I would reverse the decision of the United States Air Force Court of Military Review as to the Additional Charge and the sentence, and return the record of trial to it to determine, in its discretion, whether to order a rehearing as to that offense and the sentence or to dismiss the charge and reassess the sentence on the basis of the remaining findings of guilty.