(dissenting):
32. We should not remand this case again. The issue is the sufficiency of the evidence. If the evidence is legally insufficient, we should set aside the findings of guilty. A failure of proof cannot be cured by remand. If the evidence is legally sufficient, we should affirm.
33. In my view the evidence is legally sufficient. At trial, the military judge took judicial notice of the regulation, captioned as a “Commandant Instruction,” without defense objection. Although the Government must prove that the regulation was a valid general regulation, there is a presumption of regularity which was not contested, much less rebutted. In the absence of evidence to the contrary, we are entitled to presume that the person who signed and issued the order had authority to do so and that the Comman*213dant, United States Coast Guard, had given the requisite approval for its issuance. See United States v. Johnson, 10 USCMA 630, 636, 28 CMR 196, 202 (1959); United States v. Masusock, 1 USCMA 32, 35, 1 CMR 32, 35 (1951); United States v. Breault, 30 MJ 833, 838 (NMCMR 1990). As noted by the court below, appellate defense counsel expressly declined to contest the validity of the regulation. 39 MJ 784, 785 (CGCMR 1994).
34. Finally, I disagree with the majority opinion’s suggestion in footnote 2 that “[clarification” of the factual issue raised by Appendix C to appellant’s Final Brief “would be appropriate.” At trial the prosecution had the burden of showing that “there was in effect a certain lawful general order or regulation.” Para. 16(b)(1), Part IV, Manual for Courts-Martial, United States, 1984. That burden was satisfied by judicial notice without objection from the defense. In determining whether the evidence is legally sufficient, we are limited to the evidence of record. United States v. Bethea, 22 USCMA 223, 46 CMR 223 (1973). In my view we should not allow extra-record evidence on a question of fact to be smuggled into the record by attaching it to an appellate brief.
I would affirm the decision of the court below.