(concurring in the result):
Appellant challenges the constitutionality of his death sentence on the basis of Fur-man v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and its progeny. The majority opinion holds that the procedure for imposing the death penalty which presently exists in the military justice system is constitutionally defective. I decide, this case on narrower grounds. The death penalty procedure followed in appellant’s case was contrary to Article 55, Uniform Code of Military Justice, 10 U.S.C. § 855, and the sentencing instructions given by the trial judge failed to properly implement paragraph 76b(l), Manual for Courts-Martial, United States, 1969 (Revised edition). Such errors materially prejudiced substantial rights of appellant and his death sentence must be set aside. Article 59(a), UCMJ, 10 U.S.C. § 859(a).
I
I start my analysis with Article 67(d) of the Code, 10 U.S.C. § 867(d). Congress, in enacting this codal provision, clearly authorized this Court to decide questions of law which arise at courts-martial under the Uniform Code of Military Justice. Middendorf v. Henry, 425 U.S. 25,44, 96 S.Ct. 1281, 1292, 47 L.Ed.2d 556 (1976); Schlesinger v. Councilman, 420 U.S. 738, 758-59, 95 S.Ct. 1300,1313-14, 43 L.Ed.2d 591 (1975); Noyd *383v. Bond, 395 U.S. 683, 694-96, 89 S.Ct. 1876, 1882-83, 23 L.Ed.2d 631 (1969). To the extent that this death penalty case raises questions with respect to various provisions of the Code, this Court must act to effect the will of Congress. In addition, one codal provision, Article 36, UCMJ, 10 U.S.C. § 836, provides that the President by regulation may prescribe modes of procedure in cases before courts-martial.1 Oftentimes the procedures prescribed are incorporations or modifications of past practices enshrined in old service manuals or vintage military law hornbooks. E.g., United States v. Davidson, 14 M.J. 81,85 (C.M.A.1982); Article 36 also requires that these modes of procedure “may not be contrary to or inconsistent with” the statutory provisions of the Uniform Code of Military Justice. See Hearings on H.R. 2498 Before a Subcommittee of the House Armed Services Committee, 81st Cong., 1st Sess., reprinted in Index and Legislative History, Uniform Code of Military Justice 1014-19, 1061-64 (1949) [hereinafter cited as Index and Legislative History]. To the extent that these executive provisions of military law, technical in nature, conflict with or fail to meet the demands of the Code, this Court must also act to accomplish Congress’ will. Noyd v. Bond, supra; H. Moyer, Justice and The Military § 2:507 (1972), and cases cited therein.
This codal posture leads me to the next question. Is it necessary that the procedure for imposing the death penalty in the military justice system comply with the principles of law articulated in Furman v. Georgia, supra, and its progeny? See Furman v. Georgia, supra 408 U.S. at 412, 92 S.Ct. at 2815 (Blackmun, J., dissenting); at 417-18 (Powell, J., joined by The Chief Justice and Justices Blackmun and Rehnquist, dissenting); cf. Schick v. Reed, 419 U.S. 256, 260, 268, 95 S.Ct. 379, 382, 386, 42 L.Ed.2d 430 (1974). Article 55 prohibits a court-martial from adjudging or imposing “any ... cruel or unusual punishment.” See People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880 (Cal.1972). This codal provision was enacted before Furman v. Georgia, supra. Yet, there is no indication in its legislative history that the protection to be afforded a servicemember by this Article should be any less than that afforded to his civilian counterpart. See Index and Legislative History, supra at 1087-89. In fact, this Court long ago stated concerning Article 55, “Certainly Congress intended to confer as much protection as that afforded by the Eighth Amendment.” United States v. Wappler, 2 U.S.C.M.A. 393,396,9 C.M.R. 23, 26 (1953).
The Supreme Court since Furman has made it quite clear that the protection from cruel and unusual punishment clause of the Eighth Amendment extends to the procedure by which the death penalty is imposed and, in a lesser degree, to the substantive factors that a jury may consider in determining whether death is appropriate. See California v. Ramos, - U.S. -, 103 S.Ct. 3446, 3451-53, 77 L.Ed.2d 1171 (1983). The language employed in Article 55, its legislative history, and our past treatment of this codal provision lead me to conclude that these are also viable concerns for the servicemember.
Another question arises concerning the applicability of Furman v. Georgia, supra, and its progeny in light of the “blue-ribbon” nature of the military court of members (i.e., the jury). Schick v. Reed, supra 419 U.S. at 260, 95 S.Ct. at 382; see Article 25, UCMJ, 10 U.S.C. § 825, Hearings on S. 857 and H.R. 4080 Before a Subcommittee of the Senate Armed Services Committee, 81st Cong., 1st Sess., reprinted in Index and Legislative History, S.H. 93-96 (1949). By statute, courts-martial are largely composed of officer members (Article 25(a) and (b)), although enlisted members may now serve on such courts (Article 25(c)). Moreover, since 1920, the requirement has generally *384existed that the convening authority detail such members of the armed forces for this duty who “are best qualified ... by reason of age, education, training, experience, length of service, and judicial temperament.” Article 25(d)(2); see Article of War 4 (1920); Brown, The Crowder-Ansell Dispute: The Emergence of General Samuel T. Ansell, 35 Mil.L.Rev. 1, 21-22 (1967). The officer qualification is rooted in history and tradition and has been reenforced over the years by the continuing structural demands of our military organizations. See Schiesser, Trial by Peers: Enlisted Members on Courts-Martial, 15 Cath.L.Rev. 171-79 (1966); W. Winthrop, Military Law and Precedents 70-80 (2d ed. 1920 Reprint). The latter qualifications are similar to the screening process found in all state systems which separates qualified jurors from a larger group of eligible jurors. See Brook-shire, Juror Selection Under The Uniform Code of Military Justice: Fact and Fiction, 58 Mil.L.Rev. 71, 78, 81, 101 (1972). In this light, military court members, as other individuals, are subject to their own biases, prejudices, and opinions, and must be guided in their discretionary decisions in the same way as civilian jurors. Id. at 73.
Does the procedure for imposing the death penalty in the military justice system comport with the principles of Furman v. Georgia, supra and its progeny, as incorporated by Article 55, UCMJ? As the Supreme Court has said, “each distinct system must be examined on an individual basis.” See Zant v. Stephens,-U.S.-, 103 S.Ct. 2733, 2741, 77 L.Ed.2d 235 (1983), quoting Gregg v. Georgia, 428 U.S. 153,195, 96 S.Ct. 2909, 2935, 49 L.Ed.2d 859 (1976) (Opinion by Justice Stewart, joined by Justices Powell and Stevens). In this regard it is necessary that the particular features of the military justice system which permit the imposition of the death penalty be clearly delineated.
Appellant was convicted of premeditated murder, in violation of Article 118(1), UCMJ, and rape, in violation of Article 120, UCMJ, 10 U.S.C. §§ 918 and 920, respectively. The first statute requires that appellant be sentenced to “death or imprisonment for life as a court-martial may direct.” See also Article 56, UCMJ, 10 U.S.C. § 856; para. 126, Manual, supra. The second statute states that appellant “shall be punished by death or such other punishment as a court-martial may direct.” Cf. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977).
Two conclusions can be drawn from these penal statutes concerning the military death penalty system. First, the provisions for alternative punishments reflect the conclusion of Congress that not all premeditated murderers should die, and all rapists need not suffer the penalty of death. See In re Anderson, 69 Cal.2d 613, 73 CaLRptr. 21, 447 P.2d 117, 140 (1968) (Tobriner, J., concurring and dissenting). In view of Article 118(4), it also can be said that Congress did not intend that all persons who unlawfully kill a human being while “engaged in the perpetration ... of ... [a] rape” need receive the death penalty. Second, these statutes impart discretion to a properly administered court-martial to impose the death penalty for these offenses in a particular case. 73 CaLRptr. 27-32, 447 P.2d at 123-28 (opinion of the Court).
These statutes, however, do not stand alone in the military justice system. The penalty of death may not be imposed for these offenses by a summary court-martial (Article 20, UCMJ, 10 U.S.C. § 820), by a special court-martial (Article 19, UCMJ, 10 U.S.C. § 819), or by a general court-martial where the convening authority directs that the case be treated as non-capital (Article 18, UCMJ, 10 U.S.C. § 818). See Article 49(f), UCMJ, 10 U.S.C. § 849(f). Since it is the convening authority who decides what type of court-martial the above-mentioned charges will be referred to, these statutory provisions impart some “prosecutorial discretion” in death penalty cases. See generally United States v. Baker, 14 M.J. 361, 365 (C.M.A.1983). The death penalty also cannot be imposed at a general court-martial composed of members unless all the members concur in the vote for the death penalty. Article 52(b)(1), UCMJ, 10 U.S.C. § 852(b)(1). Cf. Article 52(b)(2) and (3). *385The requirement of a unanimous verdict was an attempt by Congress to conform court-martial practice to that in the Federal Courts. See Index and Legislative History, supra at 1082.
The Uniform Code of Military Justice also provides for various levels of post-trial review and approval of the penalty of death if awarded by a court-martial. Under Article 64, UCMJ, 10 U.S.C. § 864, the convening authority has absolute discretion to disapprove this penalty. Under Article 66(c), UCMJ, 10 U.S.C. § 866(c), the Court of Military Review may disapprove this sentence if it “determines, on the basis of the entire record,” that it should not be approved. Under Article 67(d), UCMJ, 10 U.S.C. § 867(d), this Court can set aside the death penalty for legal error. Also the President under Article 71, UCMJ, 10 U.S.C. § 871, may disapprove the death penalty in his discretion.
Another part of the military justice system for imposing the death penalty remains to be considered. As earlier mentioned, the President has the power under Article 36 to prescribe modes of procedure at courts-martial. In paragraph 75a, Manual, supra, he has provided for a sentence hearing after findings to aid the court in determining the kind and amount of punishment to be imposed. In paragraphs 75 b and c, he has authorized the prosecution to present aggravating evidence and the defense to present evidence in extenuation and mitigation. In paragraph 75f, he has authorized argument by counsel to the members of the court-martial. Finally in paragraph 76h(l), he has expressly provided for “instructions ... tailored to the facts and circumstances of the individual case” to be given by the trial judge to the court members. No separate or distinct procedures are expressly provided in the Manual for death penalty cases. See United States v. Matthews, 13 M.J. 501, 531 (A.C.M.R.1982).
After careful consideration of the above features of the military death penalty system both fraternally and separately, I conclude that this system does not comply with the demands of Furman v. Georgia, supra, and its progeny. See generally United States v. Matthews, supra at 535 (Jones, Sr. J., and Hanft, J., dissenting in part); and at 551 (Garn, J., dissenting in part).
IA
It is well established that the decision of the Supreme Court in Furman v. Georgia, supra, broke new ground by emasculating the untrammelled sentencing discretion of a jury in capital cases. See Gregg v. Georgia, supra 428 U.S. at 196 n. 47, 96 S.Ct. at 2936 n. 47; Furman v. Georgia, supra 408 U.S. at 400-01, 92 S.Ct. at 2809-10 (Chief Justice Burger, joined by Justices Blackmum, Powell, and Rehnquist, dissenting); see generally, R. Berger, Death Penalties 129, 132 (1982). In the aftermath of Furman, there was “a virtual stampede of state reenactments of the death penalty.” Ely, Democracy and Distrust 65 (1980). See Roberts v. Louisiana, 428 U.S. 325, 352-54, 96 S.Ct. 3001, 3014-15, 49 L.Ed.2d 974 (1976) (opinion by Justice White, joined by Chief Justice Burger and Justices Blackmun and Rehnquist, dissenting). Note, Discretion and the Constitutionality of the New Death Penalty Statutes, 87 Harv.L.Rev. 1690 (1974). “[T]he legislative history of the Antihijacking Act of 1974 [49 U.S.C. § 1473(c)] reveals Congress’ understanding that Furman had invalidated the various discretionary death penalty provisions of the federal criminal code,” and the subsequently enacted statute was the sole attempt on the part of Congress “to meet the demands of Furman.” United States v. Kaiser, 545 F.2d 467, 471 (5th Cir.1977). As pointed out by the Court of Military Review, “the Uniform Code of Military Justice and the Manual for Courts-Martial . .. have not been amended in response to” Furman v. Georgia, supra, and its progeny. United States v. Matthews, supra at 530. Therefore, the present military justice procedure for imposing the death penalty was not designed with Furman v. Georgia, supra, and the cases that followed as a guide.
Undeterred by these judicial, legislative, and executive realities, the Court of Military Review held that the procedure for *386imposing the death penalty in the military justice system nonetheless anticipated and satisfied the concerns of Furman v. Georgia, supra, and its progeny. This conclusion implies that, as a result of overabundant concern for the rights of servicemembers or as a result of mere happenstance, a unique system for imposing the death penalty evolved in the military, without regard for civilian practice. While such a phenomenon has occurred in the past (see Miranda v. Arizona, 384 U.S. 436, 489, 86 S.Ct. 1602, 1635, 16 L.Ed.2d 694 (1966)), no authority has been presented to this Court which suggests that such an enlightened procedure for imposing the death penalty was thought to exist in the military prior to Furman or for that matter prior to this case. In reality, the military justice procedure for imposing the death penalty was not considered unique and provided the members of the court-martial with “the same unfettered discretion in sentencing, with the same type of unstructured reference to their conscience as was given” in McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). Wall, Recent Developments — Jury Assessment of the Death Penalty: McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), 55 MiLL.Rev. 247, 251 (1972); see also Comment, The Court-Martial As a Sentencing Agency: Milestone or Millstone, 41 Mil.L. Rev. 81, 84 (1968). A comparison with the California system at issue in McGautha confirms my thinking. See generally West Annotated California Code, Penal Code (1970).
(1) California Penal Code §§ 187,189,190
The penalty provided for premeditated murder was death or in the alternative life in prison.
(2) California Penal Code § 190.1
A bifurcated trial, a guilt stage and a punishment stage, both before the same jury.
(3) California Penal Code’ § 190.1
At the penalty stage of the trial, the government introduced evidence in aggravation, the defense presented evidence in mitigation, and both were allowed to argue to the jury.
(4) CAUIC No. 306.01:
The instructions given by the judge were virtually identical to those given in the Matthews case. See McGautha v. California, supra at 190-91, 91 S.Ct. at 1458-59. See generally People v. Durham, 70 Cal.2d 171, 74 Cal.Rptr. 262, 449 P.2d 198 n. 23 (Cal. 1969).
(5) California Penal Code Section 1181(7)
The trial judge had the power to reduce the penalty of death to life in prison.
(1) Uniform Code, Article 118(1)
The penalty provided for premeditated murder is death or in the alternative life in prison.
(2) Manual for Courts-Martial Paragraph 75a
A bifurcated trial, a guilt stage and a punishment stage, both before the same jury-
(3) Manual for Courts-Martial Paragraphs 75 b, c, d, f
At the penalty stage of the trial, the government introduced evidence in aggravation, the defense presented evidence in mitigation, and both were allowed to argue to the jury.
(4) The trial of Matthews:
The instructions given by the trial judge were virtually identical to those given in McGautha. See 16 M.J. 377, 378 n. 11 of Chief Judge Everett’s opinion.
(5) Uniform Code, Article 64 and Article 66
Article 64 - the convening authority need approve only such parts of the sentence as he finds correct in law and fact and as he in his discretion determines should be approved. Article 66 - The Court of Military Review may affirm only a sentence that it finds correct in law and fact, determined on the basis of the entire record.
*387(6) California Penal Code § 1239(b)
There is an automatic appeal to the Supreme Court of the State.
(7) California Constitution Article 5, § 8
See California Penal Code § 4800 et seq.
The Governor has the power to commute the death sentence.
(6) Uniform Code, Article 67 67
There is an automatic appeal to the United States Court of Military Appeals. (There is no direct appeal to any court from a decision of this Court.)
(7) Uniform Code, Article 71
The President has the power to commute the death sentence.
Although the McGautha Court was divided on the Due Process Clause constitutionality of standardless jury sentencing in death penalty cases, it was quite clear that all the justices agreed that the California sentencing procedures imparted absolute discretion to the jury. E.g., McGautha v. California, supra, 402 U.S. at 186, 91 S.Ct. at 1456; at 306, 91 S.Ct. at 1517 (Justice Brennan, joined by Justices Douglas and Marshall, dissenting). See Gregg v. Georgia, supra, 428 U.S. at 196, n. 47, 96 S.Ct. at 2936 n. 47. The majority opinion also notes that these procedures were characteristic of “most capital trials in this country” at that time. McGautha v. California, supra, 402 U.S. at 221, 91 S.Ct. at 1474. Since the military justice system for imposing the death penalty was not only developed prior to McGautha, but has remained unchanged since that time, and since it is virtually identical to these California sentencing procedures2, I must conclude that it too imparts untrammelled sentencing discretion to the members of a court-martial in capital cases.
The McGautha -type sentencing discretion was rejected on cruel and unusual punishment grounds by the decision in Furman v. Georgia, supra, and in those cases that followed. See Gregg v. Georgia, supra 428 U.S. at 196 n. 47, 96 S.Ct. at 2936 n. 47; Furman v. Georgia, supra, 408 U.S. at 310 n. 12, 92 S.Ct. at 2762 n. 12 (Justice Stewart, concurring); 428 n. 11, 92 S.Ct. at 2823 n. 11 (Justice Powell joined by Chief Justice Burger, Justices Blaekmun and Rehnquist, dissenting).3 Systems which were virtually the same as that now promoted by the Government were rejected long ago by the Supreme Court. See Delgado v. Connecticut, 408 U.S. 940, 92 S.Ct. 2879, 33 L.Ed.2d *388764 (1972); Scoleri v. Pennsylvania, 408 U.S. 934, 92 S.Ct. 2852, 33 L.Ed.2d 747 (1972). To permit this legal anachronism to be revived ten years after Furman would be to return the military justice system to “the dark ages,” a course contrary to the intent of Article 55. See Index and Legislative History, supra at 1087.
IB
A slightly different approach to this question, focusing on particular features of the military capital sentencing system, also convinces me that it fails to satisfy the concerns of Furman v. Georgia, supra. My Brother Judges are primarily concerned with the failure of the Code and Manual to require court members to specifically identify the aggravating circumstances which they have relied on to impose the death penalty. They hold that such a defect precludes meaningful appellate review and renders the present capital sentencing procedure invalid under Furman. I share this concern. See Zant v. Stephens, supra 103 S.Ct. at 2761 n. 5 (Marshall, J., dissenting); People v. Frierson, 25 Cal.3d 142, 158 Cal. Rptr. 281, 599 P.2d 587, 608-09 (1979). Yet, I also believe a more fundamental flaw exists in the present military capital sentencing system. At the stage of the legislafive definition, the class of convicted murderers eligible for the death penalty is not adequately narrowed for the court members. See Zant v. Stephens, supra 103 S.Ct. at 2742-44. See generally Gillers, Deciding Who Dies, 129 U.Pa.L.Rev. 1, 23-26 (1980).
Article 118 proscribes the crime of murder in the military justice system.4 It provides that the unlawful killing of a human being without justification or excuse constitutes this offense when this act is done with one of the four states of mind or intents listed in the statute. See 96 Cong.Rec. 1307 (1950). “[A] premeditated design to kill” is one criminal state of mind which the court-martial may find to convict a person of murder. Article 118(1). In this context, premeditation is an element of the offense necessary to the guilt/innocence determination of the crime of murder. See California v. Ramos, supra 103 S.Ct. at 3456; para. 197 b, Manual, supra.5
Article 118 also delineates those categories of murder for which the death penalty is authorized. One of the circumstances where a capital murder offense occurs is when the accused had a premeditated design to kill. In this context, premeditation is a factor found at the guilt determination phase of the court-martial which narrows *389the categories of murder for which a death penally may ever be imposed. See generally Jurek v. Texas, 428 U.S. 262,271,96 S.Ct. 2950, 2956, 49 L.Ed.2d 929 (1976). However, Article 118 further provides that a court-martial may sentence a person found guilty of capital murder to the alternative punishment of imprisonment for life. As indicated earlier, this portion of the statute reflects a decision by Congress that not all premeditated murderers need be sentenced to death, and it imports discretion to the members to determine who should die.6
The Supreme Court has stated “that statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty.” Zant v. Stephens, supra 103 S.Ct. at 2743. While great deference must be paid to the decisions of the legislature in this regard (California v. Ramos, supra at 103 S.Ct. 3452), the Supreme Court has also said that to avoid the evils of Furman, “an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v. Stephens, supra 103 S.Ct. at 2742-43 (footnote omitted; emphasis supplied). Gf. Gillers, supra at 28 nn. 120 and 121. Whether a finding of premeditation7 satisfies the concern of Furman and its progeny in this regard has not been expressly decided by the Supreme Court. See Pfau and Milhizer, The Military Death Penalty and The Constitution; There is Life After Furman, 97 Mil.L.Rev. 35, 50 (1982) [hereafter cited as Pfau and Milhizer]. Cf. Gillers, supra at 2 n. 2 and at 23 n. 106. The answer depends on whether this standard is “so vague that ... [it] would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.” Zant v. Stephens, supra 103 S.Ct. at 2742, quoting Gregg v. Georgia, supra 428 U.S. at 195 n. 46, 96 S.Ct. at 2935 n. 46 (emphasis supplied).
Not a single post-Furman decision from a civilian court has been brought to our attention which would support the Government’s contention that premeditation by itself “adequately” or “genuinely” narrows the class of persons eligible for the death penalty as a result of a murder conviction.8 *390Cf. McGautha v. California, supra 402 U.S. at 207 n. 16, 91 S.Ct. at 1467 n. 16. The Court of Military Review relied on Jurek v. Texas, supra, for its conclusion that premeditation could satisfactorily serve this function. See English, The Constitutionality of the Court-Martial Death Sentence, 21 A.F.L.Rev. 552, 556-70 (1979). Close examination of the Jurek decision reveals that this analogy is not well-founded. See Comment, The Death Penalty in Military Courts: Constitutionally Imposed? 30 U.C. L.A.L.Rev. 366, 396-401 (1982); Pavlick, The Constitutionality of the U.C.M.J. Death Penalty Provisions, 97 Mil.L.Rev. 81, 116 n. 195 (1982). A finding of premeditation or its functional equivalent was not employed in the Texas system to categorically narrow the class of murderers eligible for the death penalty. See generally Zant v. Stephens, supra 103 S.Ct. at 2741, 2742-43. The necessary circumscription was accomplished when the Texas legislature more narrowly defined capital homicides as intentional and knowing murders committed in five specific and objective situations. See Jurek v. Texas, supra 428 U.S. at 269-71, 96 S.Ct. at 2955-56. Instead, a finding of premeditation was employed at the selection stage of the Texas capital sentencing system for the purpose of individually determining whether the death penalty was appropriate for a person already found to be eligible for that penalty. See Jurek v. Texas, supra at 272, 96 S.Ct. at 2956. Since unbridled jury discretion is permitted at this stage of the sentencing process (California v. Ramos, supra 103 S.Ct. at 3457 n. 22, quoting Zant v. Stephens, supra 103 S.Ct. at 2742), Jurek v. Texas, supra, cannot be reasonably construed as approving premeditation as a factor which “genuinely narrow[s]” the class of murderers eligible for the death penalty.
The question is not whether premeditation narrows the class of convicted murderers, but whether it “genuinely narrow[s]” this class in the sense intended by Furman v. Georgia, supra. See Gillers, supra at 26. The dissenting opinion of Senior Judge Jones in the court below grasped this critical distinction. See United States v. Matthews, supra at 541-42 (Jones, Sr.J. and Hanft, J., dissenting in part). There it was pointed out that a large number of convictions under premeditated murder statutes were vacated in the wake of Furman. E.g., Delgado v. Connecticut and Scoleri v. Pennsylvania, both supra. In addition, the lead opinion in Woodson v. North Carolina, 428 U.S. 280, 286 n. 4, 96 S.Ct. 2978, 2982 n. 4, 49 L.Ed.2d 944 (1976), characterized a similar statute employing premeditation in this manner as one imparting “unbridled [jury] discretion.” As pointed out earlier, the military justice system’s use of premeditation as part of its discretionary capital punishment system for convicted murderers was not unique prior to Furman. See Roberts v. Louisiana, supra 428 U.S. at 333-34 n. 8, 96 S.Ct. at 3006 n. 8. To hold ten years after Furman that the use of premeditation in this same fashion now adequately satisfies its concerns would seriously undermine the vitality of that decision. See California v. Ramos, supra 103 S.Ct. at 3456 n. 21. The common-sense import of Furman and its progeny is that premeditation is too broad a concept to accomplish the “genuine narrow[ing]” required at the stage of legislative definition to determine the class of convicted murderers eligible for the death penalty. See United States v. Matthews, supra at 541 (Jones, Sr. J., and Garn, J., dissenting in part). See generally Gillers, supra at 23-25.
II
The final reason for my refusal to affirm the death penalty in appellant’s case is the failure of the trial judge to give proper instructions to the court members in accordance with paragraph 765(1), Manual, supra. Article 59(a). This provision requires that the trial judge “tailor” his instructions on sentence “to the facts and circumstances of the individual case.... ” Its purpose is to assist the members in making “an intelligent determination of an appropriate sentence.” See United States v. Wheeler, 17 U.S.C.M.A. 274, 277, 38 C.M.R. 72, 75 (1967), quoting United States v. Cleckley, 8 U.S.C. M.A. 83, 87, 25 C.M.R. 307, 311 (1957) (Quinn, C.J., dissenting). I believe that tai*391lored instructions are particularly important in death penalty cases. See Godfrey v. Georgia, 446 U.S. 420, 429-30, 100 S.Ct. 1759, 1765-66, 64 L.Ed.2d 398 (1980). This is especially true in the military justice system where prior to this court-martial the death penalty had fallen into desuetude9 and the occasions for intelligent decision making by members in this regard were limited. See English, supra at 552 n. 2.
It cannot be gainsaid that there was little opportunity for this Court or the Courts of Military Review to examine and analyze the military death penalty system prior to this case. See Pavlick, supra at 82 n. 5. Moreover, the voluminous briefs filed in this case are a testament to the fact that a wide divergence of opinion exists among those experienced in military law as to the precise nature of the death deserving decision embraced in this system. In this context, I must assume that the lay court members in appellant’s case, who were called upon to make this important decision, were at the very least in need of considerable guidance from the trial judge. See generally Andres v. United States, 333 U.S. 740, 765-66, 68 S.Ct. 880, 892-93, 92 L.Ed. 1055 (1948).
Chief Judge Everett has included in his opinion the instructions provided by the trial judge to meet this critical need of the court members. He instructed them that a death penalty could be imposed in this case, that other punishments could be awarded in conjunction with it, and that a unanimous vote was required for any sentence which included the death penalty. Otherwise, he provided them with the standard sentencing instructions applicable in any non-capital court-martial. These instructions cannot reasonably be considered sufficient to satisfy the independent requirement of paragraph 76b(l), Manual, supra, that the sentencing decision at court-martial be intelligent. Two reasons exist for my conclusion.
First, in an earlier decision of this Court notice was paid to the severity of various punishments, unknown to civilian life, which could be imposed at courts-martial at the discretion of court members. See United States v. Wheeler, supra at 276, 38 C.M.R. at 74. There this Court cautioned that “a mere rote instruction on the maximum imposable sentence,” id. at 277, 38 C.M.R. at 75, would not suffice in those cases where one of these penalties was authorized only because of peculiar circumstances existing in that individual case. See United States v. Yocom, 17 U.S.C.M.A. 270, 38 C.M.R. 68 (1967); United States v. Hutton, 14 U.S.C.M.A. 366, 34 C.M.R. 146 (1964). The death penalty is not unknown to civilian life, yet it “is unique in its severity and irrevocability.” Gregg v. Georgia, supra 428 U.S. at 187,96 S.Ct. at 2931. If a finding of premeditation was the particular aggravating circumstance which permitted the imposition of this severe penalty in appellant’s case, the court members similar should have been fully advised of this fact and its bearing on their remaining discretionary determination. United States v. Wheeler, supra at 277, 38 C.M.R. at 75. See United States v. Matthews, supra at 551 (Garn, J., dissenting in part).
Second, the majority opinion of the Court of Military Review below stated that “we do not read the Supreme Court decisions as requiring that capital sentencing be accomplished by procedures different from non-capital sentencing” if “lesser sentences are imposed with the same care.” United States v. Matthews, supra at 531. Such a statement ignores the fact that in the military justice system, a unitary sentence is always assessed and, as in the present case, the decisions to award a death penalty is made at the same time that decisions as to lesser punishments are made. See United States v. Keith, 1 U.S.C.M.A. 442, 448-49, 4 C.M.R. 34, 40-41 (1952). In this context, “the qualitative difference of death from all other punishments” (California v. Ramos, supra 103 S.Ct. at 3451) is clouded, and the greater reliability required in capital sentencing decisions would tend to be diminish*392ed by the varied tasks before the members. See Beck v. Alabama, 447 U.S. 625, 639,100 S.Ct. 2382, 2390, 65 L.Ed.2d 392 (1980). See generally Gillers, supra at 46-57. Particular instructions which emphasized the uniqueness and primacy of their death decision could and should have been provided by the trial judge in appellant’s case in accordance with paragraph 76b(l), Manual, supra. Approval of the death penalty in the present case without such instructions would denigrate a well-established principle of military law essential to perpetuation of justice in this legal system.10
The majority answered three questions which I do not.
1. I do not find it necessary to reach the question of the authority of this Court to declare an act of Congress unconstitutional.
2. The question of whether the executive or the legislative branch may act to modify the present code so that it comports with Article 55 is not before the Court in this case.
3. The question of the effect of the Supreme Court’s decision in Dobbert v. Florida, 432 U.S. 282 [97 S.Ct. 2290, 53 L.Ed.2d 344] (1977), on any change to the military justice system is not before the Court in this case.
Accordingly, I hold the death penalty was improperly adjudged in this case, and I vote to reverse the decision of the United States Army Court of Military Review as to the sentence. I would return the record of trial to that court for approval of a sentence of life imprisonment with lesser accessory penalties.
. The framers of the Uniform Code of Military Justice recognized that as a matter of practice the President approves the rules of procedure and modes of proof which are recommended by the services. See Hearings on H.R. 2498 Before a Subcommittee of the House Committee on Armed Services, 81st Cong., 1st Sess., reprinted in Index and Legislative History, Uniform Code of Military Justice 1014-16 [hereafter cited as Index and Legislative History].
. It is also quite clear that the California Supreme Court agreed that its sentencing procedure prior to 1972 imparted absolute sentencing discretion to the jury in capital cases and failed to meet the requirements of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). See People v. Jackson, 28 Cal.3d 264, 168 Cal.Rptr. 603, 618 P.2d 149, 184 (1980) (Bird, C.J., dissenting); People v. Frierson, 25 Cal.3d 142, 158 Cal.Rptr. 281, 599 P.2d 587, 605 (1979); People v. Murphy, 8 Cal.3d 349, 105 Cal.Rptr. 138, 503 P.2d 594, 596 n. 2 (1972).
. The Supreme Court stayed its mandate in McGautha v. California and its companion case, Crampton v. Ohio, 402 U.S. 183, 91 S.Ct. 1454,28 L.Ed.2d 711 (1971), to permit consideration of petitions for rehearing in those cases. See McGautha v. California, 403 U.S. 951, 91 S.Ct. 2273, 29 L.Ed.2d 862 (1971), and Crampton v. Ohio, 403 U.S. 951, 91 S.Ct. 2274, 29 L.Ed.2d 862 (1971). This was the same day that certiorari was granted in Furman v. Georgia, 403 U.S. 952, 91 S.Ct. 2282, 29 L.Ed.2d 863 (1971) . On June 7, 1972, the petition for rehearing in McGautha v. California, supra, was denied on the basis of Aikens v. California, 406 U.S. 813, 92 S.Ct. 1931, 32 L.Ed.2d 511 (1972) . See McGautha v. California, 406 U.S. 978, 92 S.Ct. 2407, 32 L.Ed.2d 677 (1972). The Supreme Court stated in Aikens v. California, supra, that the decision of the California Supreme Court in People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880 (1972), invalidating the death penalty on state constitutional grounds, removed any realistic threat of execution and rendered moot the federal constitutional question. On June 29, 1972, the Supreme Court granted the petition for rehearing in Crampton v. Ohio, 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972), and vacated the judgment affirming the death penalty on the basis of Furman v. Georgia, supra.
. Prior to 1863, a court-martial had no jurisdiction over the offense of murder, unless it directly prejudiced military discipline. W. Winthrop, Military Law and Precedents 667 (2d ed. 1920 reprint); G. Davis, A Treatise on the Military Law of the United States 439-41 (3rd ed., revised, 1913); see Ex Parte Mason, 105 U.S. 696, 698, 26 L.Ed. 1213 (1882). Cf. United States v. French, 10 U.S.C.M.A. 171, 27 C.M.R. 245 (1959). In 1863, a specific statute was enacted which permitted a general court-martial “[i]n time of war, insurrection, or rebellion” to punish a person in the military service for murder. Winthrop, supra at 666. See also Article of War 58 (1874). In 1916, a court-martial was authorized to punish the crime of murder unless the offense was committed during peacetime within the United States. See Article of War 92 (1916). In 1951, the above limitations on the jurisdiction of a court-martial to punish a servicemember for murder were removed. Article 118, UCMJ, 10 U.S.C. § 918. Cf. O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969).
. Prior to the Elston Act of 1948, “premeditation” was considered by military law to be one of the circumstances in which “malice aforethought” was said to exist. See Winthrop, supra at 672-73; Davis, supra at 445-46. Article of War 92 (1948) generally embraced the delineation of murder by degrees and the use of premeditation as an aggravating circumstance defining first degree murder. See Hearings on H.R. 2575 (Elston Act), 80th Cong., 1st Sess., 2127-2128 (1947); United States v. Roman, 1 U.S.C.M.A. 244, 249, 2 C.M.R. 150, 155 (1952). Article 118(1) clarified this distinction and recognized a premeditated killing as the classic definition of common law murder or statutory murder in the first degree. See Index and Legislative History, supra at 1246-52; United States v. Calley, 22 U.S.C.M.A. 534, 540, 48 C.M.R. 19, 25 (1973). This use of premeditation in the development of the law of murder was not unique to the military justice system. See Woodson v. North Carolina, 428 U.S. 280, 290-91, 96 S.Ct. 2978, 2984-85, 49 L.Ed.2d 944 (1976); R. Perkins, Criminal Law 86-96 (2d ed. 1969).
. In 1863 when murder first became a statutory offense expressly cognizable by courts-martial, Congress stated that its “punishment ... shall not be less than ... [that] provided ... by the laws of the State, Territory, or District” where it was “committed.” Winthrop, supra at 667; Davis, supra at 439. In 1916, Congress provided that the alternative punishment of death or life in prison was required for murder. Article of War 92 (1916); see Winston v. United States, 172 U.S. 303, 19 S.Ct. 212, 43 L.Ed. 456 (1899). In 1948, Congress provided that murder be punished as a court-martial directs, unless premeditated, in which case either death or life in prison was required. See Hearings on the Elston Act, supra. Article 118 provides that premeditated murder and felony murder shall be punished by death or life in prison and that other murders be punished as a court-martial directs. Again the development of this capital punishment system for murder was not unique. See Woodson v. North Carolina, supra 428 U.S. at 292-93, 96 S.Ct. at 2985-86.
. Prior to Furman v. Georgia, supra, much dissatisfaction was expressed as to the use of premeditation to delineate the class of murders to which the penalty of death ought to be confined. See Bedau, The Death Penalty in America, 24-24 (1967 rev. ed.); American Law Institute, Model Penal Code Tentative Draft No. 9, 68-70 (1959); Cardozo, Selected Writings 382-84 (1947). The Supreme Court expressed similar sentiments in Woodson v. North Carolina, supra 291-92, 96 S.Ct. at 2985.
. One commentator has indicated that after Furman v. Georgia, supra, four states used premeditation as a statutory aggravating circumstance pertinent to imposing the death penalty. See Bedau, The Death Penalty in America, Table 2-1-3, p. 37 (3rd ed. 1982). Review of these state statutes today reveals that “lying in wait” or “from ambush” is the specific statutory term employed in these post-Furman death penalty systems. See CaLPenal Code § 190.-2(a)15 (1978); Col.Rev.Stat. § 16-ll-103(6)(f) (1975); Indiana Code 35-50-2-9(b)3 (1977); Montana Code Annotated, § 46-18-303(4) (1979). This statutory language is generally recognized “as a specific illustration of’ premeditation, referring to the particular situation where one’s purpose is to take a person unawares. Perkins, supra at 90-91.
. The last military death sentence, prior to appellant’s trial on July 3, 1979, was adjudged on January 6, 1965. See Pfau and Milhizer, The Military Death Penalty and The Constitution; There Is Life Añer Furman, 97 Mil.L.Rev. 35, 79 n. 325 (1982).
. The President specifically directed that tailored sentencing instructions be provided to the members in the 1969 revised edition of the Manual for Courts-Martial. Prior to this time, this Court similarly required the use of tailored sentencing instructions at courts-martial. United States v. Yocom, 17 U.S.C.M.A. 270, 273, 38 C.M.R. 68, 71 (1967). Judge Kilday, earlier, most eloquently commented on the reason for tailored instructions:
We find nothing in the authorities cited to indicate that this Court has even suggested a narrow or grudging course be followed by law officers — or, in special courts-martial, by presidents — in charging court members on the law. The darkness of misunderstanding may obscure the import of certain facts but, when they are scrutinized through the spectacles of intelligence, the truth may more easily emerge. In short, justice tends to nourish in an enlightened atmosphere. The requirements of the law foster it, and the intent of this Court has always been to encourage that situation.
United States v. Smith, 13 U.S.C.M.A. 471, 474, 33 C.M.R. 3, 6 (1963) (emphasis added).