concurring in the result:
The majority opinion erroneously reviews this case utilizing an abuse of discretion standard. On the facts of this case, the military judge did not have the discretion to deny the request.
At the initial Article 39(a) session in this case, the appellant was represented by an associate of the civilian counsel who would be defending him. At that session the military judge merely advised the appellant of his forum options without requesting a forum choice. The court then recessed on 3 March 1992 and reconvened on 20 April 1992 because lead civilian counsel was unavailable until that date.
When the court reconvened, the military judge asked the appellant’s defense counsel, in pertinent part, “has the accused elected to be tried by a judge alone or made some other decision?” 1 The defense counsel responded that the appellant had decided to be tried by “a court composed of one-third enlisted.” I agree with my brothers that this statement on the record was sufficient to be the appellant’s personal request for enlisted members on his court-martial. The military judge denied the request, however, reasoning that it was untimely according to local court rules. In my opinion, the denial was plain error affecting a substantial right of the appellant.
Article 25(c)(1) provides in pertinent part that “[ajfter such a request [i.e., a request for enlisted members made prior to assembly], the accused may not be tried by a general or special court-martial the membership of which does not include enlisted members in a number comprising at least one-third of the total membership of the court____” As the Court of Military Appeals noted in United States v. Stipe, 23 U.S.C.M.A. 11, 48 C.M.R. 267 (1974) the military judge has no discretion where such a request is concerned.2
. The military judge should have directed his question directly to the accused rather than to counsel. See United States v. Brookins, 33 M.J. 793, 795 (A.C.M.R.1991).
. The abuse of discretion standard of review applies when the question is withdrawal of a request for military judge alone after the court is assembled. See United States v. Jeanbaptiste, 5 M.J. 374 (C.M.A. 1978); United States v. Wright, 5 M.J. 106 (C.M.A.1978); United States v. Bryant, 23 U.S.C.M.A. 326, 49 C.M.R. 660 (1975).
*700It should be noted that, when the accused has made a request for enlisted members before assembly of the court, the provisions of R.C.M. 903(e) that purport to introduce the concepts of waiver and judicial discretion are contrary to the plain language of Article 25(c)(1). It cannot be debated that the President lacks the authority under Article 36(a) to prescribe rules for courts-martial that are contrary to the Uniform Code of Military Justice. Thus, those portions of R.C.M. 903(e) are void that abridge the rights of a military accused under Article 25(c)(1).