(concurring in the result):
If, as pointed out in the principal opinion, General Canham directly succeeded to the command in General Williams’ temporary absence, he had the legal authority to refer the charges to trial. Article 34, Uniform Code of Military Justice, 50 USC § 605; AR 600-20, paragraph 5 (a); United States v. Bunting, 4 USCMA 84, 15 CMR 84.
General Canham’s right to succeed depended upon whether he was “the next senior present on duty.” AR 600-20, paragraph 5(a). No evidence of General Canham’s rank in relation to the other officers of the command appears in the record, or in the affidavits submitted by the accused. Unlike the majority, I do not believe that this Court can take judicial notice of the fact that two officers of a specified grade are present in a designated area and that one is senior to the other. See my dissent in United States v. Uchihara, 1 USCMA 123, 2 CMR 29.
Nor does the fact that General Can-ham was Deputy Corps Commander have any significance. The position of Deputy Corps Commander may not be uncommon, but it is unusual. It is not listed in the Table of Organizations and Equipment for a Corps generally, and it is not provided for specifically in the general order of Headquarters, Eighth Army, which organized the IX Corps. T/O & E 52-1A, September 11, 1953; General Order 100, Headquarters, Eighth Army, March 6,1954. Moreover, I have serious doubts as to whether we can take judicial notice of a Department of the Army special order as distinguished from a general order. Manual *249for Courts-Martial, United States, 1951, paragraph 147, page 274; United States v. Taylor, 2 USCMA 389, 9 CMR 19. Thus, proof of General Canham’s status as “next senior present” must be established by other means.
It appears from the affidavits, especially that of Colonel Abrams, the Corps’ Chief of Staff, that General Canham acted as the Commander in General Williams’ absence. It must be presumed that in so doing, General Canham acted lawfully. Consequently, in relation to the facts in this case, it must be presumed that General Canham assumed the office of commander, not merely because of his paper title of Deputy Corps Commander, but because he was “the next senior present” and was entitled to the office by virtue of the provisions of AR 600-20, paragraph 5(a). The accused has offered no evidence to rebut the presumption. As a matter of fact, it may be inferred from his brief and supporting papers that he concedes General Canham’s status as the Corps officer “next senior” to General Williams.
In summary, therefore, no view of the case supports the accused’s contention that Article 34 was violated. If we look only to the record there is patently 'no violation. If we look to the supplemental affidavits, it is equally clear that the officer actually and legally in command properly referred the charges to trial. United States v. Bunting, supra. Accordingly, I join in affirming the decision of the board of review.