Appellant was tried by special court-martial, judge alone, and pursuant to his pleas of guilty was convicted of the following offenses: one specification of dereliction of duty in violation of Article 92, UCMJ, 10 U.S.C.A. § 892; four specifications of maltreatment of subordinates in violation of Article 93, UCMJ; two specifications of provoking speech in violation of Article 117, UCMJ; one specification of adultery, one specifica*1102tion of drunk and disorderly, four specifications of communicating indecent language, and one specification of solicitation of another to violate a general regulation, all in violation of Article 134, UCMJ.
The judge sentenced Appellant to a bad conduct discharge, confinement for six months, and reduction to pay grade E-l. The convening authority approved only a bad conduct discharge and reduction to pay grade E-2, as called for by the sentence terms of a negotiated plea agreement. Before this Court, Appellant has assigned six errors.
I
THAT APPELLANT’S PLEA OF GUILTY TO SPECIFICATION NINE OF CHARGE V, ALLEGING SOLICITATION TO COMMIT A VIOLATION OF A GENERAL REGULATION, WAS IMPROVIDENT
Appellant contends that there was no lawful general regulation to violate since the regulation alleged in specification nine was the same one found to be defective in U.S. v. Webster, 37 M.J. 670 (C.G.C.M.R.1993) and U.S. v. Remchak, Dkt. No. 1009 (C.G.C.M.R. 11 June 1993). Accordingly, he asserts that the plea of guilty to solicitation to violate that regulation was improvident. Subsequent to Appellant’s filing of assigned errors, this Court decided U.S. v. Ballard, 39 M.J. 1028 (C.G.C.M.R.1994) and U.S. v. Townsend, 39 M.J. 784 (C.G.C.M.R.1994). Those cases make it clear that U.S. v. Webster, supra, has limited applicability and U.S. v. Remchak, supra, has been expressly renounced as wrongly decided.
U.S. v. Ballard, supra, was a guilty plea case, just as we have here. In Ballard, we found that the accused’s pleas of guilty were provident, that he had full opportunity to challenge the regulation at trial and chose not to do so, thereby acknowledging its lawfulness. We pointed out that, in so doing, the accused relieved the Government of the burden of proving the Commandant’s personal involvement in the promulgation of the directive by a subordinate ofScer. As a result, we determined not to reopen the trial to require the Government to prove something that was admitted by the accused’s guilty plea.
The same result pertains in the case before us now. The pleas of guilty were provident and Appellant acknowledged the lawfulness of the regulation by those pleas. As in Ballard, we will not require the Government to prove something now that was admitted by Appellant’s guilty pleas at trial. Accordingly, assignment of error I is rejected. In taking this action, we deny the Government’s motion that this Court judicially note Chapter 8 of Coast Guard Regulations and two promulgation orders, since those documents have no relevance to our resolution of this assigned error.
II
THAT APPELLANT WAS UNFAIRLY PREJUDICED BY REMARKS OF THE TRIAL COUNSEL DURING SENTENCING ARGUMENT COMMENTING ON APPELLANT’S EXERCISE OF HIS RIGHT TO REMAIN SILENT
At the sentencing stage of trial, Appellant chose to remain silent by not testifying and by not making an unsworn statement. Although Appellant did not object to the trial counsel’s argument on sentence when it was made, he now claims that the trial counsel improperly referred to that silence and invited the military judge to sentence more severely because of Appellant’s exercise of this constitutional right. The portion of trial counsel’s argument that Appellant now finds objectionable was as follows: “[E]ven today we don’t have someone who is ready to repent, and who wants to change and build — build from the ground up.” R. at 203.
In response, the Government, citing U.S. v. Edwards, 35 M.J. 351 (C.M.A.1992), says the question is whether the trial counsel’s argument can be construed as asking the court to 'draw a negative inference from Appellant’s exercise of a constitutional right. In that regard, the Government contends that trial counsel’s argument, when read in context, does not focus at all upon Appellant’s exer*1103cise of his right to remain silent. Instead, according to the Government, the argument was about Appellant’s mendacity during the providence inquiry and his lack of rehabilitation potential based on a reasonable inference from the evidence.
The evidence referred to by the Government was in the form of testimony from numerous witnesses in aggravation who recounted the details of each offense, including the frequency of Appellant’s use of certain indecent language. In contrast, during the inquiry into the providence of the pleas of guilty, Appellant tried to minimize the use of that language, even denying using one particular phrase more than once. Witnesses, on the other hand, said the phrase was one of Appellant’s favorites, which he used frequently.
The pertinent part of the trial counsel’s argument started by addressing the possibility that Appellant might be trying to derive some benefit from pleading guilty to the specification alleging the language in question. The argument then went on to say in its entirety the following:
But in reality he tried to dis — he tried to downplay it, even on providency. He denied saying it more than once. He claims he only said it once, but you heard other wi[t]nesses — you heard what they said about the frequency with which he used that term. One witness even said “Oh, that was his favorite phrase.” So even today we don’t have someone who is ready to repent, and who wants to change and build — build from the ground up. This man is a Doctor Jekyll and a Mr. Hyde, if you will. He acts one way around his supervisor, puts a good show on in front of the various Chiefs that have supervised him. But when he is alone with his subordinates, there’re [sic] scared of him.
R. 203
We agree with the Government’s assessment of this argument. It does not relate at all to Appellant’s exercise of his right to remain silent. Instead, the argument constituted fair comment on aggravation evidence that had been presented by the prosecution and on Appellant’s sworn answers during the judge’s colloquy with him concerning his guilty pleas. In this regard, the record reflects that the judge informed Appellant before the plea inquiry commenced that his answers could be used by the prosecution during sentencing as evidence in aggravation. We find no merit to assignment of error II.
Ill
THAT APPELLANT WAS UNFAIRLY PREJUDICED BY THE INTRODUCTION OF IMPROPER EVIDENCE IN SENTENCING
Appellant asserts that, during sentencing, the military judge improperly considered a court memorandum reflecting nonjudicial punishment imposed on Appellant in January 1990. This prosecution exhibit from Appellant’s service record was admitted as aggravation evidence over objection for its failure to clearly indicate that Appellant’s rights were properly honored in accordance with U.S. v. Booker, 5 M.J. 238 (C.M.A.1977).
U.S. v. Booker, supra, was a case dealing with the use at trial of prior summary courts-martial convictions to sustain an increase in the authorized punishment under certain Manual for Courts-Martial provisions. There was no indication in that ease that nonjudicial punishment was involved in any way. Nevertheless, in an opinion authored by then Chief Judge Fletcher and dissented to by Judge Cook, the Court fashioned a new procedural requirement for both summary courts-martial and nonjudicial punishment, as a prerequisite to their admissibility at a subsequent trial.
Based on Chief Judge Fletcher’s interpretation of the Supreme Court’s decision in Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976), the Court created a right for an accused to consult with an independent counsel before deciding whether or not to refuse trial by summary court-martial or to demand court-martial in lieu of nonjudicial punishment. The Court also required that any waiver of these rights be in writing.1
*1104Notwithstanding misgivings about Booker expressed at the time and that may still remain, the procedures imposed by the opinion have been implemented by Coast Guard regulation. The Coast Guard’s Military Justice Manual (COMDINST M5810.1C) Article l-C-5d incorporates the Booker mandates into the procedures for nonjudicial punishment and the PMIS/JUMPS MANUAL sets out the manner of documenting this procedure on a court memorandum form.
Among other things, that latter regulation says that Block 41 of the court memorandum, which indicates that the individual was advised of the right to confer with counsel and has voluntarily consented to the proceeding, shall have an “X” typed in the “Yes” block “only when the ‘Responsible Officer’ ... has actually seen the member’s signature on an ‘Acknowledgment of Rights — Acceptance of NJP’ form.” ROT Appellate Exhibit XII PMIS/JUMPS MANUAL, VOLUME II (PERSRU), Art. 2.G.4.ff.
Appellant objects to the court-memorandum admitted in evidence because U.S. v. Booker, supra, says a valid waiver could not be assumed or inferred “solely on the basis of a single check in a box on a prepared form.” Id. at 244. Moreover, Appellant complained at trial that the cheek mark was not even in the box. We reject both of these objections. First, it was clear to the trial judge from viewing the form, as it is to us, that the “X” was intended for the block marked “YES” and that poor alignment when the entry was made placed the “X” outside the box.
Furthermore, in light of the provision in the PMIS/JUMPS MANUAL requiring that a responsible officer view the accused’s signed acknowledgment of rights and acceptance of nonjudicial punishment before an entry is made, we may safely presume that such was done. The issue was litigated at trial and the military judge fully inquired into the matter, augmenting the record with the regulations she had judicially noted as appellate exhibits. We find that the judge’s ruling admitting the prosecution exhibit based on those regulations was correct.
Moreover, we believe the ruling comports with U.S. v. White, 19 M.J. 662, 668 (CGCMR 1984), where it was stated, “that forms of evidence other than a completed and signed acknowledgment of rights/acceptance of NJP form are acceptable ...” We find the evidence considered by the military judge acceptable and sufficient to establish that Appellant was advised of his right to consult with counsel before accepting nonjudicial punishment, as required by Coast Guard regulations. Assignment of error III is rejected.
IV, V, and VI
The remaining assignments of error raise issues with respect to the appointment of judges, the use of collateral duty judges, and the lack of fixed terms of office for judges. These issues have been resolved against Appellant by the U.S. Supreme Court and the U.S. Court of Military Appeals in U.S. v. Weiss, — U.S. -, 114 S.Ct. 752, 127 L. Ed.2d 1, 62 U.S.L.W. 4047 (U.S. Jan. 19, 1994) (No. 92-1482) and U.S. v. Carpenter, 37 M. J. 291 (CMA 1993). They are all rejected for that reason.
Conclusion
We have reviewed this record in' accordance with Article 66, UCMJ. Upon such review, the findings and sentence are determined to be correct in law and fact and on the basis of the entire record should be approved. Accordingly, the findings of guilty and sentence, as approved below, are affirmed.
Appellate Defense Counsel has correctly noted that the convening authority’s action improperly orders the bad conduct discharge executed and the Government agrees. Counsel also advises, that no attempt has been made to actually discharge Appellant, who is on appellate leave. The convening authority *1105is directed to issue a corrected action that complies with R.C.M. 1113(c)(1).
Judge FEARNOW concurs.. Contemporaneous criticism of the Booker opinion may be found in U.S. v. Nordstrom, 5 M.J. *1104528, 535 (NCMR 1978). Subsequently, in a second Booker opinion authored by Judge Cook and dissented to by Chief Judge Fletcher, the Court of Military Appeals rescinded in part its earlier ruling, but left intact the requirement for consultation with counsel and the requirement for written waiver. U.S. v. Booker, 5 M.J. 246 (CMA 1978). Maybe it is time for the Court of Military Appeals to take another look at this remaining aspect of Booker to determine whether it, too, should be overturned.