(concurring):
15. I fully concur in the majority opinion and write separately only to offer comments on certain aspects of this issue addressed by the Court of Military Review in its opinion on remand. 39 MJ 784 (1994). I believe that it is important to state clearly my views regarding what this case is and is not about, before it goes back one more time to the now-Court of Criminal Appeals.
I
16. It is the prosecution’s affirmative burden in a court-martial to present evidence from which factfinders reasonably may find each element of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In this case, one of those elements is the existence of “a certain lawful general order or regulation.” See para. 16b(1)(a), Part IV, Manual for Courts-Martial, United States, 1984 (1994 ed.).
17. In an effort to meet that burden in this case, trial counsel asked the military judge to take judicial notice of the particular regulation that the specification alleged appellant had violated: “Article 8-H-5, U.S. Coast Guard Personnel Manual, Commandant Instruction M1000.6A.” In the absence of a defense objection, the military judge did so.
18. What was the effect of this? First, the existence of this regulation and its substantive content thus are established by legally sufficient evidence, with the possible caveat regarding the matter addressed in footnote 2 of the majority opinion. Second, presuming regularity in the absence of objection to a regulation that is regular on its face, the authority of T.T. Matteson, Chief, Office of Personnel, to issue this regulation is established by legally sufficient evidence. In sum, then, there is legally sufficient evidence of a lawful order and what that order says, against which appellant’s conduct can be measured for compliance.
19. The question that remains unanswered, however, is whether this regulation is a “lawful general order or regulation,” on the one hand, or an “other lawful order,” on the other. (Emphasis added.) Compare Art. 92(1), Uniform Code of Military Justice, 10 USC § 892(1), with Art. 92(2), UCMJ, 10 USC § 892(2).
20. That same question was raised, regarding precisely this regulatory provision, in United States v. Webster, 37 MJ 670 (CGCMR 1993), a case out of this same Court of Military Review that was published after its decision in this case but before our remand. There, the court found that, while the Acting Chief of the Office of Personnel and Training (id. at 676) had the authority to issue the regulation, he was not an official whose regulations constitute “lawful general orders or regulations.” Further, the face of the regulation was ambiguous regarding whether that official had issued the regulation on his own authority or, instead, “at the personal direction of the Commandant.” 37 *211MJ at 679. In that light, appellant may have violated an “other lawful order,” but the court concluded that there was a legal insufficiency of proof that he had violated a “lawful general order or regulation.” See United States v. Bartell, 32 MJ 295 (CMA 1991); United States v. Breault, 30 MJ 833 (NMCMR 1990).
II
21. Accordingly, as to the question in issue, several points should be made. First, notwithstanding the suggestion implied in the remand opinion, 39 MJ at 785, the question is not an “evidentiary issue[ that is] normally litigated and resolved at the trial level.” By failing to object at trial, appellant did waive the appropriateness, in an evidentiary sense, of judicial notice of the existence and content of this regulation. See Mil. R.Evid. 201, Manual, supra. Thereby, he also waived any objection regarding whether T.T. Matteson had the authority to issue this regulation. None of this, however, has any bearing on the salient question now on appeal. Unless this regulation on its face indicates that T.T. Matteson issued it by direction of someone authorized to promulgate a “lawful general order or regulation,” see para. 16c(1)(a), Part IV, there remains a critical void in the evidence, viz., no evidence at all that appellant violated a “lawful general order or regulation.”
22. Second, in this context, it also is clear that the issue now on appeal was not and could not have been “waived.” Even with the regulation in evidence and even if it arguably is legally sufficient to support a conviction for violating an “other lawful order,” if T.T. Matteson did not issue this regulation by direction of the Commandant, then the evidence is not legally sufficient to show existence of a “lawful general order or regulation.” To suggest trial “waiver” of an issue of legal sufficiency of the evidence to prove an element of the charged offense is a non sequitur.
23. Third, I believe it also is inappropriate to talk about appellate “waiver” by appellate defense counsel’s affirmatively declining the opportunity to raise this issue in the Court of Military Review when this case first passed through that court. I know of no precedent for doing so, and I am not willing to make this case the first.
24. Moreover, I am disturbed by the underlying tone in the remand opinion that the court believes it was sandbagged by the defense. Specifically, the court bemoaned the fact that, when challenging the rape conviction, appellate defense counsel indicated belief that the evidence was sufficient for the remaining charge; and now, with the court having set aside the rape conviction, it is being asked to examine the sufficiency of the evidence on the remaining charge, as well. Chief Judge Baum wrote for the majority:
After hearing the argument by counsel, we set aside the most serious conviction of rape, as urged, and affirmed the lesser charge that had been conceded. Counsel’s concession of the lesser offense, while forcefully challenging the most serious conviction, is seen by us as a conscious tactical decision that ultimately succeeded. In our view, that tactic constituted quintessential affirmative waiver.
39 MJ at 785.
25. The disconcerting aspect of this is the implication that counsel’s position on the remaining charge did or properly should have had any impact on the court’s willingness to evaluate the appellate challenge to the rape conviction. The court’s statutory duty to be convinced of the legal and factual correctness of the rape conviction before affirming it, see Art. 66(c), UCMJ, 10 USC § 866(c), is entirely independent of its identical duty regarding the conviction for having violated a lawful general order or regulation. Appellate defense counsel’s arguably possible disingenuousness is not a legally cognizable counterweight to this statutory responsibility.
26. Finally, the court’s analogy of this attack on the legally sufficiency of the evidence to a petition for a new trial (39 MJ at 786) is fundamentally flawed. In the latter, the Government has fully met its trial responsibility of presenting some evidence from which factfinders reasonably can find each and every element of the offense charged; in the former, the claim is to the *212contrary. These issues are not even kissing cousins, much less Siamese twins.
Ill
27. With these expressions, I join in the majority opinion and the remand, once again, to what is now the Court of Criminal Appeals. In my view, the court’s responsibility on remand will be quite simply to consider whether, in light of its decision in United States v. Webster, supra, there is evidence that the regulation in question was issued by direction of the Commandant. If so, then it may affirm the challenged conviction (assuming that it finds that the regulatory paragraph in question existed at the time of appellant’s alleged violation of it, see n. 2 of majority opinion); if not, then it may consider whether it can affirm a conviction of a lesser offense of violation of an “other lawful order,” with a concomitant reassessment of the sentence.