Opinion of the Court
COX, Chief Judge:
Contrary to his pleas, appellant was convicted by a general court-martial at Fort Hood, Texas, of premeditated murder and breaking restriction, in violation of Articles 118 and 134, Uniform Code of Military Justice, 10 USC §§ 918 and 934, respectively. Thereafter, the members sentenced appellant to a dishonorable discharge, life imprisonment, and total forfeitures. The convening authority approved the sentence but suspended all confinement in excess of 50 years for 1 year. In an unpublished opinion, the Court of Military Review1 affirmed.
This, appeal asks us to define the dimensions of an accused’s right to have court members articulate their recommendation of clemency to the convening authority. We are asked to do so in the context of an issue questioning the correctness of the military judge’s instructions to the members that, if they wanted to make such a recommendation at the time of announcing the sentence, three-fourths of them must vote to do so. 42 MJ 415 (1995).
[212]*212I
Nine minutes after court had closed so that the members could deliberate on their sentence, they returned to ask: “The question is, must we impose confinement for life or must we merely vote for life?” The following colloquy ensued:
MJ: Well, you must vote for a sentence that includes confinement for life. You have no choice with respect to that____ [T]he court cannot reach a sentence unless seven [of the nine] members concur and that must include confinement for life. Now, you have no choice with respect to that. You may do this. You may, after imposing a sentence which includes confinement for life, collectively, or after the trial, individually, recommend to the convening authority that the confinement be reduced to another number, whatever it is. You can recommend clemency with respect to the confinement. Well, actually you can always recommend clemency, but you can’t do it — I don’t want to confuse you. Let me talk about confinement and everything I say applies to confinement. The bottom line is, you must vote for a sentence which includes confinement for life. You can, as a court, collectively or individually, recommend clemency with respect to that length of confinement.
PRES: And how would we record that?
MJ: You may announce that the court recommends that the convening authority only approve — after you announce the sentence you can also say, “The court recommends that the convening authority approve a certain amount of years.” I assume that’s what you’re thinking about. Or you could, individually after the trial either approach the convening authority, approach the defense counsel, approach the SJA, to record your individual views. That’s permissible in this case because of the mandatory nature of the sentence.
PRES: If we have four people that decide that they recommend clemency, how do we record that, or do we?
MJ: You may do it together and send a Utter to the convening authority, approach him individually, approach the Staff Judge Advocate, approach the defense counsel, any number of ways.
PRES: I’m still not clear. If four people, after we — during deliberations, four people say, I’ll recommend clemency. Do we come back to you and record that in this document [holds up Appellate Exhibit XLVIII — (sentence worksheet) ] or is that done outside of this courtroom on another time and place?
MJ: If less than seven [of the nine] members of the court are recommending clemency, or at least seven can agree on the degree of clemency, you can write a letter to the convening authority, you can write a letter to the SJA, you can talk to the defense counsel, call him up and talk to him. You can talk to the trial counsel, through any number of ways like that. You can put it in writing, together the four of you. You can meet in your office this afternoon and talk about it, or anything like that. You know, any way that you would — could get a message through to the convening authority.
(Emphasis added.) Defense counsel stated he had no objection to this instruction.
In due course, the members returned with the sentence indicated earlier, without a recommendation for clemency. The sentence worksheet reflects the following handwritten notation: “Court has chosen not to address clemency because less than seven members wanted to.” App.Ex. XLVIII. It is apparent that the words “only 4 members” were written in, and then stricken out after “because,” and replaced by the current language. After trial, three of the members, in fact, did write the convening authority to recommend clemency, and a fourth wrote to recommend against clemency.
II
In considering whether the above-quoted instructions were plainly erroneous, see United States v. Toro, 37 MJ 313 (CMA 1993), cert. denied, 510 U.S. 1091, 114 S.Ct. 919, 127 [213]*213L.Ed.2d 213 (1994); United States v. Fisher, 21 MJ 327 (CMA 1986), we note that the granted issue logically presents three questions: First, does an accused have any right to a collective recommendation by the members for clemency, to be announced contemporaneously with the sentence? Second, if so, what vote is required for such a collective recommendation? Finally, in light of answers to these questions, is there a “reasonable likelihood” that the members applied these instructions in an impermissible and prejudicial manner? See generally Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Our standard of review is de novo. See S. Childress & M. Davis, Standards of Review § 2.13 (1992).
From this Court’s earliest days, we recognized that a court-martial does not have the power to adjudge a suspended sentence. United States v. Marshall, 2 USCMA 342, 8 CMR 142 (1953). Nonetheless, “[i]t has long been the practice in the military service for courts-martial to make recommendations of clemency to reviewing authorities.” United States v. Doherty, 5 USCMA 287, 291, 17 CMR 287, 291 (1954). This Court even has commented that “it is a practice which must be encouraged” in light of the court-martial’s legal inability, itself, to suspend any or all of a sentence. Id.
Although not entirely clear, it appears that the legal basis for this early-recognized right of a court-martial to recommend clemency might have been the following language found in paragraph 766 (4), Manual for Courts-Martial, United States, 1951:
For the information of the convening authority — but not as a part of the sentence itself — the court may formulate for inclusion in the record a brief statement of the reasons for the sentence.
See United States v. Turner, 14 USCMA 435, 439, 34 CMR 215, 219 (1964). See generally Art. 36(a), UCMJ, 10 USC § 836(a) (authority of the President to promulgate rules of procedure). It is also possible that the legal basis might have been paragraph 11a of the 1951 Manual.
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Opinion of the Court
COX, Chief Judge:
Contrary to his pleas, appellant was convicted by a general court-martial at Fort Hood, Texas, of premeditated murder and breaking restriction, in violation of Articles 118 and 134, Uniform Code of Military Justice, 10 USC §§ 918 and 934, respectively. Thereafter, the members sentenced appellant to a dishonorable discharge, life imprisonment, and total forfeitures. The convening authority approved the sentence but suspended all confinement in excess of 50 years for 1 year. In an unpublished opinion, the Court of Military Review1 affirmed.
This, appeal asks us to define the dimensions of an accused’s right to have court members articulate their recommendation of clemency to the convening authority. We are asked to do so in the context of an issue questioning the correctness of the military judge’s instructions to the members that, if they wanted to make such a recommendation at the time of announcing the sentence, three-fourths of them must vote to do so. 42 MJ 415 (1995).
[212]*212I
Nine minutes after court had closed so that the members could deliberate on their sentence, they returned to ask: “The question is, must we impose confinement for life or must we merely vote for life?” The following colloquy ensued:
MJ: Well, you must vote for a sentence that includes confinement for life. You have no choice with respect to that____ [T]he court cannot reach a sentence unless seven [of the nine] members concur and that must include confinement for life. Now, you have no choice with respect to that. You may do this. You may, after imposing a sentence which includes confinement for life, collectively, or after the trial, individually, recommend to the convening authority that the confinement be reduced to another number, whatever it is. You can recommend clemency with respect to the confinement. Well, actually you can always recommend clemency, but you can’t do it — I don’t want to confuse you. Let me talk about confinement and everything I say applies to confinement. The bottom line is, you must vote for a sentence which includes confinement for life. You can, as a court, collectively or individually, recommend clemency with respect to that length of confinement.
PRES: And how would we record that?
MJ: You may announce that the court recommends that the convening authority only approve — after you announce the sentence you can also say, “The court recommends that the convening authority approve a certain amount of years.” I assume that’s what you’re thinking about. Or you could, individually after the trial either approach the convening authority, approach the defense counsel, approach the SJA, to record your individual views. That’s permissible in this case because of the mandatory nature of the sentence.
PRES: If we have four people that decide that they recommend clemency, how do we record that, or do we?
MJ: You may do it together and send a Utter to the convening authority, approach him individually, approach the Staff Judge Advocate, approach the defense counsel, any number of ways.
PRES: I’m still not clear. If four people, after we — during deliberations, four people say, I’ll recommend clemency. Do we come back to you and record that in this document [holds up Appellate Exhibit XLVIII — (sentence worksheet) ] or is that done outside of this courtroom on another time and place?
MJ: If less than seven [of the nine] members of the court are recommending clemency, or at least seven can agree on the degree of clemency, you can write a letter to the convening authority, you can write a letter to the SJA, you can talk to the defense counsel, call him up and talk to him. You can talk to the trial counsel, through any number of ways like that. You can put it in writing, together the four of you. You can meet in your office this afternoon and talk about it, or anything like that. You know, any way that you would — could get a message through to the convening authority.
(Emphasis added.) Defense counsel stated he had no objection to this instruction.
In due course, the members returned with the sentence indicated earlier, without a recommendation for clemency. The sentence worksheet reflects the following handwritten notation: “Court has chosen not to address clemency because less than seven members wanted to.” App.Ex. XLVIII. It is apparent that the words “only 4 members” were written in, and then stricken out after “because,” and replaced by the current language. After trial, three of the members, in fact, did write the convening authority to recommend clemency, and a fourth wrote to recommend against clemency.
II
In considering whether the above-quoted instructions were plainly erroneous, see United States v. Toro, 37 MJ 313 (CMA 1993), cert. denied, 510 U.S. 1091, 114 S.Ct. 919, 127 [213]*213L.Ed.2d 213 (1994); United States v. Fisher, 21 MJ 327 (CMA 1986), we note that the granted issue logically presents three questions: First, does an accused have any right to a collective recommendation by the members for clemency, to be announced contemporaneously with the sentence? Second, if so, what vote is required for such a collective recommendation? Finally, in light of answers to these questions, is there a “reasonable likelihood” that the members applied these instructions in an impermissible and prejudicial manner? See generally Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Our standard of review is de novo. See S. Childress & M. Davis, Standards of Review § 2.13 (1992).
From this Court’s earliest days, we recognized that a court-martial does not have the power to adjudge a suspended sentence. United States v. Marshall, 2 USCMA 342, 8 CMR 142 (1953). Nonetheless, “[i]t has long been the practice in the military service for courts-martial to make recommendations of clemency to reviewing authorities.” United States v. Doherty, 5 USCMA 287, 291, 17 CMR 287, 291 (1954). This Court even has commented that “it is a practice which must be encouraged” in light of the court-martial’s legal inability, itself, to suspend any or all of a sentence. Id.
Although not entirely clear, it appears that the legal basis for this early-recognized right of a court-martial to recommend clemency might have been the following language found in paragraph 766 (4), Manual for Courts-Martial, United States, 1951:
For the information of the convening authority — but not as a part of the sentence itself — the court may formulate for inclusion in the record a brief statement of the reasons for the sentence.
See United States v. Turner, 14 USCMA 435, 439, 34 CMR 215, 219 (1964). See generally Art. 36(a), UCMJ, 10 USC § 836(a) (authority of the President to promulgate rules of procedure). It is also possible that the legal basis might have been paragraph 11a of the 1951 Manual. That provision specifically addressed the right of defense counsel, after sentence has been announced, to “submit in writing for attachment to the record any matters as to clemency which it [the defense] desires to have considered by the members of the court or the convening authority”; as well, it provided for “a recommendation for clemency by individual members of the court,” even for a single recommendation expressed by individuals joining together. See United States v. Keith, 22 USCMA 59, 62-63, 46 CMR 59, 62-63 (1972); United States v. Turner, supra at 439, 34 CMR at 219.
Although language similar to paragraph 766 (4) did not appear in subsequent versions of the Manual for Courts-Martial, that of paragraph 11a did continue to appear, and this Court also continued to acknowledge a collective right of a court-martial to recommend clemency. See, e.g., United States v. Keith, supra. Moreover, the 1995 amendments to the Manual now instruct that one of the mandatory components of the staff judge advocate’s written recommendation to the convening authority is “[a] recommendation for clemency by the sentencing authority, made in conjunction with the announced sentence.” RCM 1106(d)(3)(B), Manual for Courts-Martial, United States (1995 edition); see Manual, supra at A25-27 (1995 ed.).
All said, we conclude that, for over 4 decades, the President has provided for, and this Court has recognized, the power of a court-martial to recommend clemency to the convening authority, contemporaneously with announcement of the sentence. The President has not altered his course; neither shall we.
What is wholly unaddressed, as far as we can tell, is the question of the vote that is required in order to make such a recommendation. One possibility is the same percentage that is required to adjudge the sentence, see RCM 1006(d)(4), Manual, supra (1995 ed.). This alternative is not a compelling one, however, since both the Manual provisions and this Court’s opinions steadfastly have made clear that a recommendation for clemency is not a part of the sentence. Moreover, the rationale that supports an increasing percentage of votes for [214]*214an increasing severity of a sentence would not necessarily seem to support a similar formula relating to clemency recommendations. Another possibility is a simple majority — a rationale that might be supported to some extent by the absence of any other provision whenever reference is made in the Manual or this Court’s opinions to “a court-martial.” Other possibilities, too, might suggest themselves.
In the absence of a Presidential decision reflected in the Manual, this Court might have to provide an answer in an appropriate case.2 This one, however, is not such a case. Nothing anywhere in the record suggests that any more than four members ever considered recommending clemency, and ultimately only three did so post-trial in their individual capacities. With nine members sitting, a bare majority of five members— which would seem to be the least that would be required to satisfy references to “a court-martial” — would have been necessary in order for the court-martial to make a collective recommendation.
Accordingly, there is no reasonable likelihood that the military judge’s instruction that seven members would have to agree on a recommendation was impermissibly applied to appellant’s prejudice. Further, the military judge repeatedly made clear to the members their individual rights to recommend clemency, and three of them did so. In this context, there is no plain error, if error at all.
Ill
The decision of the United States Army Court of Military Review is affirmed.
Judges CRAWFORD and GIERKE and Senior Judge DARDEN concur.