(concurring in part and dissenting in part):
I concur as to the majority’s affirmance of the findings of guilty to all charges and specifications except as to the findings of guilty to Charge II and its specification, violation of a general order.
I dissent because I believe the officers authorized to issue general orders or regulations as described in Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892, and as explained in paragraph 16c(1)(a), Manual for Courts-Martial, United States, 1984, must personally sign general punitive orders or regulations. In appellant’s case, it is unclear to me whether the chief of staff was delegated authority to merely perform a ministerial function of signing or a “legislative” function of issuing. The authority to legislate criminal (penal or punitive) statutes is non-delegable. United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563 (1911); see United States v. Curtis, 28 M.J. 1074, 1105 n. 16 (NMCMR 1989) (Albertson, J., dissenting). Penal statutes must be strictly construed. United States v. Wiltberger, 18 U.S. 76, 5 *839Wheat (U.S.) 76, 5 L.Ed. 37, 42 (1820); United States v. LaCour, 17 C.M.R. 559 (ABR 1954). To permit a presumption of regularity based upon a signature of someone other than the flag or general officer in command, as the majority’s view would, shifts to an accused the burden of producing evidence that the officer exercising general court-martial jurisdiction did not personally know about or authorize a punitive regulation issued under his command line. Such a burden to rebut the presumption of regularity is too heavy a burden to place upon an accused, particularly in light of the fact that a punitive regulation need not be recently issued to be effective. Cf. Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228, reh’g denied, 355 U.S. 937, 78 S.Ct. 410, 2 L.Ed.2d 419 (1958). The general or flag officer’s personal signature on the order or regulation would negate the need for a presumption of regularity and relieve the defense of an unfair burden.
Additionally, the disparity in maximum punishments authorized for violation of Article 92(1) and Article 92(2) offenses is evidence of the seriousness with which the decision to promulgate general orders/regulations should be treated. Nothing derogates from the fact in appellant’s case that his possession and consumption of alcohol in the barracks in violation of the regulation in question was a violation of an other lawful order properly issued and for which appellant was subject to 6 months confinement, % forfeitures of pay per month for 6 months, reduction to pay grade E-l and a bad-conduct discharge. Cf. United States v. Brown, 8 U.S.C.M.A. 516, 25 C.M.R. 20 (1957).
I would therefore set aside the findings of guilty to Charge II and its specification and dismiss Charge II and its specification. Upon reassessment of the sentence, I would affirm the sentence approved on review below. United States v. Sales, 22 M.J. 305 (C.M.A.1986).