(dissenting):
I agree with the majority that the military judge erred by not obtaining evidence regarding the alleged disqualification of Captain Finta. I disagree, however, with the majority decision to set aside the findings and sentence. Accordingly, I dissent.
By setting aside the findings and sentence without determining whether Captain Finta was disqualified, we may be giving appellant a windfall in the form of a second chance to litigate the charges and a sentence rehearing at which the maximum imposable punishment will be the sentence previously adjudged. Article 59(a), Uniform Code of Military Justice, 10 USC § 859(a), mandates: “A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.” In this ease we cannot determine if prejudicial error occurred. We appear to be establishing a presumption of prejudice based on bare assertions of counsel.
In this case the defense made an offer of proof; the prosecution disputed the defense’s offer of proof; and the military judge made purported findings of fact with no evidence in the record. Appellant’s assertions raise a collateral issue appropriate for resolution at a limited hearing. See United States v. DuBay, 17 USCMA 147, 149 n. 2, 37 CMR 411, 413 n. 2 (1967).
There is ample precedent for using a Du-Bay hearing to resolve collateral issues of the type before us in this case. In United States v. Jeter, 35 MJ 442 (1992), this Court relied on evidence adduced at a DuBay hearing ordered by the Court of Military Review and held that the convening authority was not disqualified. In United States v. Lucy, 6 MJ 265 (1979), this Court sanctioned use of a DuBay hearing to determine the reasons for the delay in the post-trial review. We held that “no error was committed in remanding the ease for a limited hearing to determine the cause of the delay.” 6 MJ at 265. Responding to our encouragement, the Courts *9of Military Review have regularly used Du-Bay hearings to resolve collateral issues, including alleged disqualification of convening authorities. See, e.g., United States v. Scott, 20 MJ 1012 (ACMR 1985), and United States v. Thompson, 19 MJ 690 (ACMR 1984) (whether convening authority disqualified because of unlawful command influence); see also United States v. Gaspard, 35 MJ 678 (ACMR 1992) (whether convening authority personally selected court members); United States v. Berman, 28 MJ 615 (AFCMR 1989) (whether military judge disqualified because of intimate relationship with prosecutor); United States v. Dancy, 8 MJ 566 (NCMR 1979) (whether court-martial had jurisdiction in light of evidence that accused may have been unlawfully enlisted); United States v. Taylor, 3 MJ 947 (NCMR 1977) (whether attorney-client relationship improperly severed). Based on the foregoing precedents, I would order a DuBay hearing in this case.