EDWARDS, Judge:
In a trial before members, Appellant pled not guilty to all charges and specifications. Nevertheless, he was convicted of violating two separate lawful general regulations (four specifications), rape (one specification), assault consummated by a battery (two specifications), indecent assault (three specifications), and communicating indecent language to another (two specifications), in violation of Articles 92, 120, 128, and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 892, 920, 928, and 934 (Supp. II 1990). The convening authority approved the adjudged sentence of reduction to pay grade E-l, forfeiture of $500.00 pay per month for two months, confinement for two months, and a bad conduct discharge.1
Appellant submits seven assignments of error. Assignment I asserts that the evidence was insufficient as a matter of law to find Appellant guilty of rape beyond a reasonable doubt. Assignments II through V fall into two categories; that neither of the purported lawful general regulations under which he was convicted was punitive in nature, nor, in any event, was either promulgated properly. Assignment VI asserts that Appellant’s special court-martial lacked jurisdiction because the Military Judge was appointed in violation of the Appointments Clause of the Constitution. The final assignment asserts that this Court lacks authority to affirm either the findings or the sentence of Appellant’s special court-martial as approved by the convening authority.
The case having been fully briefed and argued, we affirm in part and reverse in part.
I.
THE ALLEGED RAPE
A.
Although styled as a challenge purely to the legal sufficiency of the evidence, Appellant also challenges the factual sufficiency of the evidence upon which he was found guilty of rape, contending that the government failed to establish that the act of sexual intercourse was accomplished by force and without the consent of Petty Officer T, the alleged victim. The test for legal sufficiency is whether, considering the evidence in a light most favorable to the government, the trier of fact rationally could find the existence of every element of the alleged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The test for factual sufficiency is whether, after weighing the evidence in the record of trial and making allowances for our not having observed the witnesses personally, we are convinced of Appellant’s guilt beyond a reasonable doubt. Article 66(c), UCMJ, 10 U.S.C. § 866(c); United States v. Turner, 25 M.J. 324 (C.M.A.1987).
As is common in trials where rape is charged, the description given by the participants presents differing versions of the events that transpired. There is agreement, however, on certain basic facts. At the time of the alleged rape, both Appellant and Petty Officer T were assigned to Coast Guard Station Hatteras Inlet, North Carolina. Petty Officer T resided in an off-base apartment in Frisco, North Carolina. Appellant was a Machinery Technician Second Class (E-5). Petty Officer T was a Boatswain’s Mate Third Class (E-4). Although Appellant was senior in rate to Petty Officer T, the nature of their duty assignments was such that when underway on a Search and Rescue (SAR) case, he was subject to her orders as Boat Coxswain. Neither was married. Prior to the events [672]*672in question, they had seen each other socially, had held hands and kissed, and Appellant had declared his love for Petty Officer T.
Based upon Petty Officer T’s testimony, on an uncertain date in July of 1991, Appellant visited Petty Officer T in her apartment. No one else was present. They sat together on a couch and talked for about an hour and a half. During this period, they eventually began to hold hands and kiss.
When Petty Officer T observed her cat using a litter box in her bedroom, she arose from the couch and went to close the bedroom door. Appellant followed her. He asked her if they could go into the bedroom together. Petty Officer T said, “no.” Appellant then asked Petty Officer T if they could go into the closet instead. Again, she said, “no.” Appellant then pulled Petty Officer T to the living room floor. She arose and asked Appellant to leave. Appellant told her that he would do so. Petty Officer T walked toward the front door, which was located in the kitchen area of her apartment. Appellant followed her, but, rather than departing, he placed his hands on Petty Officer T’s arms and backed her up against a kitchen counter. Beginning when Appellant started to push Petty Officer T backwards, she told him “no” approximately five more times. In some fashion, Petty Officer T next found herself sitting on the counter.
Petty Officer T had been wearing a bikini, a shirt, and a pair of boxer shorts. While she was sitting on the counter, Appellant pulled the shorts down, pushed the bikini bottom to the side, and inserted his fingers into Petty Officer T’s vagina. Thereafter, he inserted his penis into Petty Officer T’s vagina. She asked Appellant not to ejaculate inside her vagina. Appellant complied with her request and withdrew before ejaculating. After each had cleaned up, Appellant spoke a few words to her and departed.
Petty Officer T testified she did nothing to assist him in completing the act of sexual intercourse. She was not sexually aroused. Although there were instances in which Appellant had no more than one hand on Petty Officer T, she never attempted to flee. She did, however, feel that she could not move. She did not scream. Petty Officer T did not attempt to hit or otherwise physically repel Appellant, and she testified that she considered herself a “very peaceful person.” Petty Officer T was angry with Appellant for what he was doing to her, but was never afraid that he might harm her, nor did he make any threats.
Petty Officer T did not report this incident to anyone until some time much later.
As was his right, Appellant elected not to testify. However, in a somewhat unusual fashion, the members were apprised of a different version of the events of July 1991 in Petty Officer T’s apartment. During the government’s case in chief, a Coast Guard Intelligence Special Agent was called. He testified about an interview of Appellant conducted in October of 1991. During the interview, Appellant admitted that sexual intercourse had occurred, in much the same fashion as testified to by Petty Officer T. The critical distinction in this second version is that concerning Petty Officer T’s consent. As related by the Special Agent, Petty Officer T had conveyed her actual consent to intercourse through her actions. Although Petty Officer T would say “No, stop, we can’t,” while they were kissing and fondling each other, she responded favorably to his actions. According to Appellant’s statement to the agent, these included her continuing to kiss Appellant after both had entered the kitchen, fondling his penis with her hand before he lifted or helped her onto the counter, rubbing his head during intercourse, and allowing him to ejaculate into her hand.
B.
There are three elements of rape, viz., that the accused committed an act of sexual intercourse with a certain female, that the female was not the accused’s wife, and that the act of sexual intercourse was done by force and without the female’s consent. ¶ 45b(l), Part IV, Manual for Courts-Martial, United States 1984 [hereinafter MCM],
Before this Court, Appellant’s brief cites three cases in support of his argument [673]*673against finding legal and factual sufficiency. United States v. Turner, supra; United States v. Bonano-Torres, 31 M.J. 175 (C.M.A.1990); and United States v. Townsend, 34 M.J. 882 (C.G.C.M.R.1992). Turner, while stating the test for factual sufficiency, was not itself a rape case.
United States v. Townsend, supra, decided by another panel of this Court, although factually similar in some respects to the instant case, is distinguishable. The purported victim in Townsend willingly left an enlisted club with the accused late at night, and went to and then into an otherwise deserted office building with him. She freely participated in a “french-kiss” with the accused. Although she then protested against going further, when subsequently directed to “lay down” on a conference room floor, she did comply. Even after the alleged rape had occurred, she was more concerned that the accused’s “buddy” would learn about the sexual intercourse, than she was upset that it had occurred at all.
Although fitting the so-called “date rape” classification, see n. 3 infra, Bonano-Torres involved a male Staff Sergeant and a female Specialist who apparently had not dated each other prior to an evening of dining and drinking while on a temporary assignment. On returning to their hotel, the Sergeant gained access to the victim’s room in order to use the bathroom. The victim lay down on the bed and was drifting in and out of an alcohol-induced state of unconsciousness or sleep. She became aware of the Sergeant, naked, in bed with her, kissing her and massaging her breast. She told him she did not want to engage in this activity because he was married, and she kept turning her head and moving his hands. After he stopped his overtures, she again passed out or fell asleep, but similar sequences of events occurred until she finally permitted him to have intercourse so he would leave her alone and let her sleep. The Army Court of Military Review set aside the finding of rape, holding that, under Article 120, UCMJ, rape requires “proof of lack of consent and force” and that the force required is more than that merely incidental to the act of intercourse. United States v. Bonano-Torres, 29 M.J. 845, 849 (A.C.M.R.1989).
On certification to the Court of Military Appeals, the government contended, that the court below incorrectly considered resistance by the victim to be an element of the offense of rape. The Court rejected this argument as misconstruing the holding of the court below and declined to extract from the lower court’s opinion an “inflexible rule establishing resistance as a necessary element of [rape]” in cases not involving constructive force. United States v. Bonano-Torres, 31 M.J. 175, 179 (C.M.A. 1990). The Court agreed that force is required by Article 120, UCMJ, and that the conduct of the attacker and the victim need to be considered in determining whether the force used is sufficient to meet this requirement. Noting that the explanation in f 45c(l)(b), Part IV, MCM, stops short of explaining what is sufficient force, the Court affirmed, stating “we find no legal error in the holding by the court below of insufficient force in this case to the extent that it is based on the totality of the circumstances evidenced in this record.” Id. (emphasis added).
At trial, Appellant’s counsel argued vigorously that Petty Officer T’s version of events was implausible. In two instances, he even alluded to the favorable testimony of the Special Agent. Yet, following proper instruction by the military judge, the members, who had had the opportunity to observe Petty Officer T while she testified, convicted Appellant of rape.2 Applying the test of Jackson v. Virginia, supra, we are convinced that the government easily satisfied its burden of presenting legally sufficient proof of rape. With respect to factual sufficiency, the issue is a closer one. As [674]*674did the trial court, we reject Appellant’s version of events that would lead one to conclude that Petty Officer T was a willing participant in the act of intercourse. Nevertheless, we must be convinced beyond a reasonable doubt that, under the “totality of circumstances evidenced in this record,” the act of intercourse constituted rape.
Neither Bonano-Torres nor Townsend specifically addresses the determination of force and lack of consent in the “date rape” or “acquaintance rape” situation.3 Of course, neither Article 120, UCMJ, nor 1145, Part IV, MCM, makes any distinction among any types of rape. Nevertheless, in making our own determination of factual sufficiency in this case, we need not disregard the much greater research and understanding which date or acquaintance rape has received in recent years.
The characteristics of date or acquaintance rape may include (1) kissing, “necking,” and fondling but no consent by the victim to subsequent sexual intercourse; (2) passive resistance4 by the victim to the sexual advances of her attacker5; (3) the attacker’s disregard of the victim’s statement that she does not desire to engage in sexual intercourse; (4) the absence of physical threats by the attacker to his victim; (5) the failure of the victim to seize opportunities to escape from her attacker; (6) the failure of the victim to scream or cry out; (7) little or no observable physical injury to the victim; and (8) the failure of the victim to report the rape promptly. See State In Interest of M.T.S., 129 N.J. 422, 609 A.2d 1266 (1992); Deborah S. v. Diorio, 153 Misc.2d 708, 583 N.Y.S.2d 872 (N.Y.C.Civ.Ct.1992); State In Interest of J.F.S., 803 P.2d 1254 (Ut.Ct.App.1990); State v. McKnight, 54 Wash.App. 521, 774 P.2d 532 (1989); Key v. State, 765 S.W.2d 848 (Tex.Ct.App.1989); Rhodes v. State, 74 Md.App. 680, 539 A.2d 1160 (1988); Dolchok v. State, 763 P.2d 977 (Ak.Ct.App.1988); Shaw v. State, 764 S.W.2d 815 (Tex.Ct.App.1988).
Review of these apparently not uncommon characteristics of date rape helps to illuminate this troubling area, and amply supports the actions of the various legislatures that have modified the statutory provisions concerning lack of consent and resistance to force, but does not answer the critical questions which we must decide. Did Appellant employ force more than that incidental to the act of intercourse and did Petty Officer T make “her lack of consent reasonably manifest by taking such measures of resistance as [were] called for by the circumstances”? II 45c(l)(b), Part IV, MCM.
There is no evidence that Petty Officer T had engaged in intercourse with Appellant, under any circumstances, prior to the July, 1991, incident. On that day, she did hold hands with and kiss Appellant for a period of time; however, even under Appellant’s version of events, she consistently and repeatedly told him “no” when in the living room and broke off physical contact and went into the kitchen. According to Petty Officer T, when Appellant pulled her to the floor, she immediately stood up and asked him to leave and she continued to say “no” [675]*675and to resist his physical advances in the kitchen.6 Despite the absence of threats by Appellant and Petty Officer T’s lack of fear, we find there was more force applied by Appellant than that incidental to the act of intercourse. Petty Officer T’s failure either to cry out or to attempt to flee, or to strike Appellant, do not lead us to believe that her resistance was insufficient to make her lack of consent reasonably manifest.7 Accordingly, considering the totality of circumstances, United States v. Bonano-Torres, supra; United States v. Williamson, 24 M.J. 32 (C.M.A.1987), we find that the charged act of sexual intercourse “was done by force and without her consent.” ¶ 45b(1)(c), Part IV, MCM.8
II.
THE “LAWFUL GENERAL REGULATIONS”
Assignments of Error II through V attack the validity of two purported lawful general regulations, contending that neither was a “punitive” regulation nor, in any event, was either promulgated properly. The government responds that these issues were waived and that the regulations were issued properly as punitive regulations.
Article 92, UCMJ, 10 U.S.C. § 892, provides that “[a]ny person subject to this chapter who — (1) violates or fails to obey any lawful general order or regulation ... shall be punished as a court-martial may direct.” The three elements of this offense are that (1) “there was in effect a certain lawful general order or regulation;” (2) “the accused had a duty to obey it;?’ and (3) “the accused violated or failed to obey the order or regulation.” ¶ 16b(l), Part IV, MCM. At issue is the first element.
The first purported lawful general regulation challenged is Chapter 4 of the Coast Guard Military Civil Rights Manual, Commandant Instruction M5350.11B. The ver[676]*676sion of this Instruction in effect on the date of Appellant’s alleged offenses was issued by W.R. Somerville, Chief, Coast Guard Office of Civil Rights. (We note judicially that Mr. Somerville is a civilian member of the Senior Executive Service [SES]). Chapter 4 of this Instruction, which is referenced in the challenged specifications, is entitled “Sexual Harassment.” This chapter, by its own terms,
1. defines sexual harassment,
2. sets forth the Commandant’s policy on sexual harassment, and
3. prescribes the expected action of Coast Guard military and civilian personnel.
The chapter contains a lengthy definition of sexual harassment, a “Policy Statement,” two pages of “Discussion,” and separate sections on “Responsibilities,” “Reporting Procedures,” and “Action.” The penultimate section provides, inter alia, that
[Sjpecific acts of sexual harassment may be punishable under various provisions of the Uniform Code of Military Justice, including:
a. ...
b. Article 92 (Violation of existing general regulations, including provision of Chapter 8 of Commandant Instruction M5000.3 (series), U.S. Coast Guard Regulations) (emphasis added).
c. ...
Chapter 4 of the Military Civil Rights Manual does not itself contain a statement to the effect that it is a lawful general order or regulation.
The second purported lawful general regulation challenged by Appellant is Article 8-H of the Coast Guard Personnel Manual, Commandant Instruction M1000.6A. The version of this Instruction in effect on the date of Appellant’s alleged offenses was issued by then Captain G.F. Woolever in his capacity as Acting Chief, Office of Personnel and Training. Article 8-H had five sections dealing generally with fraternization and inappropriate personal relationships among senior and junior military members. Article 8-H-5c stated, “[tjhis section constitutes a punitive general order under the UCMJ, and violations of its provisions are subject to prosecution under Articles 92 and 134 of the UCMJ.”
In attacking these purported lawful general regulations, the first hurdle Appellant must overcome is whether we should address his assertions at all. At trial, the government requested that the Military Judge take judicial notice of the pertinent portions of each of the Commandant Instructions. Detailed Defense Counsel did not object, and the Military Judge did take judicial notice of them, later instructing the members on the content of each and the effect of his having taken judicial notice.
The government argues that Appellant has waived the right to contest the validity of these purported lawful general regulations before this Court. We disagree.
Concededly, there is some authority for the government position. See R.C.M. 801(g); United States v. Thompson, 31 M.J. 781 (A.C.M.R.1990) (In a “not guilty” plea trial, the military judge took judicial notice of a local general regulation, overruling the defense objection that it had not been filed and authenticated correctly. The Army Court of Military Review held that the issue of whether the regulation originally had been issued properly was waived for purposes of appellate review). Cf. United States v. Hawkins, 30 M.J. 682 (A.F.C.M.R.1990) (In a “guilty” plea case, “[determinations of lawfulness of orders are interlocutory questions of law to be resolved by the military judge upon proper motion made at trial. R.C.M. 801(e)(1) and (5) Discussion. Failure to raise the question of lawfulness of an order by motion during the trial constitutes waiver of the issue.” Id. at 684).
The greater weight of authority, however, would permit appellate review. In United States v. Hilton, 27 M.J. 323 (C.M.A.1989), a “not guilty” plea case, the Court allowed the accused to raise constitutional and statutory questions concerning a purported lawful general regulation, although they had not been raised at trial, observing that one of the reasons for not applying the waiver doctrine is “when this [677]*677Court deems review necessary on its own motion.” Id. at 326. In United States v. Lumagui, 31 M.J. 789 (A.F.C.M.R.1990), the Air Force Court of Military Review, citing Hilton, went one step further and allowed a constitutional challenge to a specification alleging violation of a lawful general regulation, even though the accused had entered unconditional pleas of guilty. The Air Force Court opined that “[i]n our analysis, such a specification fails to state an offense, a defect that is never waived. R.C.M. 907(b)(1)(B); accord, Mil.R.Evid. 103(a).” Id. at 790. Cf. United States v. Scott, 32 M.J. 644 (C.G.C.M.R.1991). (This Court allowed a constitutional challenge to Article 120[b], UCMJ, although the accused had pled guilty and failed to raise the issue at trial).
Although not a constitutional challenge, the issue which Appellant raises is an important one. As Appellant was charged with violating these two purported lawful general regulations, so might other Coast-guardsmen be. See, e.g., United States v. Townsend, supra (Conviction of accused, who never challenged validity of Article 8-H-5 of the Coast Guard Personnel Manual, affirmed on review). On its face, each specification does appear to allege “every element of the charged offense expressly or by necessary implication.” R.C.M. 307(c)(3). See also United States v. Sell, 3 U.S.C.M.A. 202, 11 C.M.R. 202 (1953). Cf. United States v. Watkins, 21 M.J. 208 (C.M.A.1986). (An unauthorized absence specification missing the words, “without authority,” is defective, although not fatally so). However, rather than deciding whether the specifications are defective (as our sister Court of Military Review did in United States v. Lumagui, supra), we prefer instead to view this as an assertion of the failure of proof of one of the elements of the offense, i.e., “[t]hat there was in effect a certain lawful general order or regulation.” ¶ 16b(l)(a), Part IV, MCM. Article 66(c), UCMJ, 10 U.S.C. § 866(c), provides that a “Court of Military Review ... may affirm only such findings of guilty ... as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.” If Appellant is correct, that neither of the challenged regulations is a valid “lawful general regulation,” we would fail “to meet our uniquely broad and independent review responsibilities,” United States v. Francis, 25 M.J. 614, 618 (C.G.C.M.R.1987), were we to apply the waiver doctrine as sought by the government. “[Wjhile it is the general rule that failure to make a timely motion at trial may estop one from raising the issue on appeal, failure to raise the issue does not preclude the Court of Military Review in the exercise of its powers from granting relief.” United States v. Evans, 28 M.J. 74, 76 (C.M.A.1989), quoting United States v. Britton, 26 M.J. 24, 27 (C.M.A.1988). Accordingly, we shall address the validity of the two regulations on the merits.
C.
“Knowledge of a general order or regulation need not be alleged or proved, as knowledge is not an element of this offense and a lack of knowledge does not constitute a defense.” ¶ 16c(l)(d), Part IV, MCM. The validity of such regulations, creating as they do what amounts to “strict liability” for the unwary, should be very closely examined. We have serious doubts that the challenged portion of the Military Civil Rights Manual meets the requirements of a “punitive” general order or regulation, see United States v. Asfeld, 30 M.J. 917, 923 (A.C.M.R.1990), although Article 8-H of the Personnel Manual does áppear adequate. In any event, we may resolve this matter on the alternative ground urged by Appellant, that neither instruction was promulgated properly.
A general order or regulation may be
properly published by the President or the Secretary of Defense, of Transportation, or of a military department, and those orders or regulations generally applicable to the command of the officer issuing them throughout the command or a particular subdivision thereof which are issued by:
(i) an officer having general court-martial jurisdiction;
(ii) a general or flag officer in command; or
[678]*678(iii) a commander superior to (i) or (ii).
IT 16c(l)(a), Part IV, MCM.
As noted in Part II-A., ante, the Military Civil Rights Manual was issued by the civilian Chief of the Office of Civil Rights. The contested Personnel Manual provisions were issued by the Chief of the Coast Guard Office of Personnel and Training (Acting). We may judicially notice (and the government conceded at oral argument) that neither of these Coast Guard Headquarters Office Chiefs meets the qualifications of II 16c(l)(a), Part IV, MCM.
Citing United States v. Bartell, 32 M.J. 295 (C.M.A.1991), the government argues, however, that so long as the decisional authority to issue the directives remained in the Commandant (who we agree is both an officer with general court-martial jurisdiction and a flag officer in command), it matters not who signed the promulgating document. With this argument we agree; however, it is inapposite in this case.
United States v. Breault, 30 M.J. 833 (N.M.C.M.R.1990) (cited by the Court of Military Appeals in Bartell), was a “guilty” plea case in which the accused had been convicted of violation of a lawful general order. The “Chief of Staff,” not the Commanding General, of Camp Lejeune Marine Corps Base had signed the purported general order. After judicially noticing two Secretary of the Navy instructions, the en banc Navy-Marine Corps Court of Military Review found a potential ambiguity in that a “Chief of Staff” signature “may connote either a ministerial signing or a genuine exercise of delegated discretionary, decision-making authority by the signatory.” Id. at 838. The Court assumed that “the discretionary, decision-making authority embodied in the issuance of a general order or regulation is non-delegable,” but held that someone else, properly authorized, may sign the order, provided the commander “at least personally [knew] and approve[d] of [its] content.” Id. The Court was prepared to apply a “presumption of regularity ... to support a finding that the order was duly signed by a person authorized to sign it,” id., but instead held that the accused’s provident pleas of guilty admitted that the Camp Lejeune Chief of Staff had the necessary authority to sign the order. Senior Judge Alberston dissented on the basis of her belief that punitive general orders or regulations must be signed personally by the officer authorized to issue them.
United States v. Bartell, supra, similarly was a “guilty” ¡olea case, involving violation of a purported lawful general order issued “By Direction” at the Marine Corps Air Ground Combat Center, Twenty nine Palms, California. The Court of Military Appeals held that “Article 92(1) [UCMJ] requires only that the order be issued as a result of the personal decision of a [flag] officer.” 32 M.J. at 296. The Court rejected the “strict-cons sruetion” view of the dissent in Breault, for the “simple reason” that the accused had pled guilty. Id. at 297.
With these two precedents9 in mind, we review the instant case. Appellant pled “not guilty” to all of the charges. Accordingly, the burden was on the government to prove every element of the Article 92(1), UCMJ, offenses beyond a reasonable doubt. R.C.M. 920(e)(5). As the Navy-Marine Corps Court did in Breault, we take judicial notice of the pertinent Coast [679]*679Guard directive, Coast Guard Headquarters Instruction M5402.3D, “Delegation of Authority.” Section 1-B thereof provides:
By this instruction, the Commandant delegates to all office and division chiefs at Headquarters the authority to carry out the full range of their program requirements with wide latitude for independent judgment and action. This encompasses the full spectrum of management, administrative, and technical functions, and includes the signing of correspondence except as noted in Chapter 5.
Section B-2.c of Chapter 5 authorizes Headquarters Office Chiefs to exercise “signature authority” with regard to Commandant Instructions (which both the Military Civil Rights and the Personnel Manuals are) “[ujnless otherwise restricted.” “Otherwise restricted” is not otherwise defined.
We are left with the type of ambiguity which the Navy-Marine Corps Court of Military Review faced in Breault. It appears that it was well within the authority of the Chiefs of the Offices of Civil Rights and Personnel and Training to issue the Military Civil Rights Manual and the Personnel Manual, respectively. If they did so under the general, delegated authority from the Commandant found in Sections 1-B and 5-B-2.C, of Headquarters Instruction M5402.3D, these were not “lawful general regulations” because neither Office Chief meets the requirements of ¶ 16c(l)(a), Part IV, MCM. If, however, they merely signed the instructions at the personal direction of the Commandant, then the requirements of ¶ 16c(l)(a), Part IV, MCM, would be satisfied. United States v. Bartell, 32 M.J. at 296. The record contains nothing to resolve this ambiguity, and the government has not submitted any documentation to demonstrate that the Commandant even was aware of either of the instructions before issuance, e.g., a yellow Clearance Sheet, Form CG-3584.
We previously have upheld purported lawful general regulations against similar appellate attack. See United States v. Friedman, 14 M.J. 865 (C.G.C.M.R.1982) (“[Sjtipulation implicitly recognize[d] that Coast Guard Regulations were promulgated by the Commandant.” Id. at 866); United States v. Hotchkiss, 13 M.J. 851 (C.G.C.M.R.1982) (citing United States v. Kennedy, infra); United States v. Kennedy, 11 M.J. 669 (C.G.C.M.R.1981) (Article 9-2-15 of “Coast Guard Regulations” is punitive and was “issued by the Commandant in his own right.” Id. at 671); United States v. Allen, 6 M.J. 633 (C.G.C.M.R. 1978) (“[Tjhe Commandant is unquestionably within that class of Commanders found by the Court of Military Appeals to have authority to promulgate general orders or regulations in contemplation of Article 92(1) Uniform Code of Military Justice.” Id. at 636). In each of these eases, the Court was satisfied that the Commandant personally had issued the general regulation. We are not so satisfied here.
In light of Appellant’s pleas of “not guilty” and the broad grant of discretionary decisional authority in Coast Guard Headquarters Instruction M5402.3D, and in the absence of any evidence that the Commandant personally directed that the pertinent portions of the two Commandant Instructions be issued, we are unwilling to apply a “presumption of regularity” in order to affirm any of the Article 92(1) specifications. Accordingly, we shall set aside and dismiss those specifications in our decretal paragraph.
III.
APPOINTMENT OF THE MILITARY JUDGE
Appellant’s sixth assignment of error asserts that his special court-martial lacked jurisdiction because the Military Judge was appointed in violation of the Appointments Clause of the Constitution. We reject this argument. See United States v. Weiss, 36 M.J. 224 (C.M.A.1992); United States v. Kovac, 36 M.J. 521, 522 (C.G.C.M.R.1992).
IV.
AUTHORITY OF THE COURT OF MILITARY REVIEW
Appellant’s final assignment of error asserts that this Court lacks authority to [680]*680affirm either the findings or the sentence of the special court-martial as approved by the convening authority. He contends (1) that the Appellate Military Judges were appointed in violation of the Appointments Clause; (2) that the Appellate Military Judges lack a specified term of office thereby resulting in a fundamental denial of due process; and (3) this Court contains Appellate Military Judges who serve on only a collateral duty basis. We reject these arguments also. See United States v. Weiss, supra; United States v. Kovac, supra.
V.
APPOINTMENT OF THE CURRENT JUDGES OF THE COAST GUARD COURT OF MILITARY REVIEW
Article 66(a), UCMJ, 10 U.S.C. § 866(a) provides that “[e]aeh Judge Advocate General shall establish a Court of Military Review____” It appears that Congress, in originally enacting Article 66, UCMJ, in 1950, contemplated that the members of the then Boards of Review would be appointed by the appropriate Judge Advocates General. See S.REP. NO. 486, 81st Cong., 2nd Sess. 28, reprinted in 1950 U.S.CODE CONG. & ADMIN.NEWS 2222, 2253; 96 CONG.REC. 1362 (1950), reprinted in 2 Index and Legislative History to the Uniform Code of Military Justice, 1950 at 1769 (1985). Cf. United States v. Prive, 35 M.J. 569 (C.G.C.M.R.1992) (“A fair reading of [Article 66(a), UCMJ] leads to the inevitable conclusion that the Judge Advocate General has the power to designate the judges of the Courts of Military Review.” Id. at 571). However, unlike the original Article 67, UCMJ, 10 U.S.C. § 867, which provided for Presidential appointment of the judges of the Court of Military Appeals, or the original Article 70, UCMJ, 10 U.S.C. § 870, which provided for appointment of appellate counsel by the Judge Advocate General, Congress has not designated any single specific official to appoint members to a Court of Military Review. See S.REP. NO. 1601, 90th Cong., 2nd Sess. 3, reprinted in 1968 U.S.CODE CONG. & ADMIN.NEWS 4501, 4503.
49 U.S.C. § 323(a) (Supp. II 1990) provides, “[t]he Secretary of Transportation may appoint and fix the pay of officers and employees of the Department of Transportation and may prescribe their duties and powers.” While review in this case was pending, on 15 January 1993, pursuant to his authority, the Secretary of Transportation, the Honorable Andrew H. Card, Jr., issued a memorandum to the Chief Judge, U.S. Coast Guard Court of Military Review, concerning appointment of appellate military judges to the Coast Guard Court of Military Review. See Appendix A. On 26 January 1993, by order of this Court, appellate counsel were provided a copy of the Secretary’s memorandum and permitted to file additional pleadings. In response thereto, Appellant has asserted that the Secretary’s memorandum has no effect on the purportedly improper appointment of the members of this Court. In light of current precedent, we need not rule on this issue. See United States v. Weiss, supra; United States v. Kovac, supra. See also United States v. Senior, 36 M.J. 1016, 1018 (C.G.C.M.R.1993).
Appellant also has questioned the manner in which the Secretary’s memorandum came into existence. By separate order, a copy of a memorandum prepared by the Chief Judge of this Court, addressed to the Chief Counsel of the Coast Guard, was provided to counsel. See Appendix B. Appellant now asserts that “[i]f any judge of this Court was involved in the creation of the memorandum to the Secretary, that judge must be disqualified from participating in the decision of this case.” As Appendix B indicates, all of the members of this Court were involved in its creation. Nevertheless, we disagree with Appellant’s assertion.
Article 66(h), UCMJ, 10 U.S.C. § 866(h) provides:
No member of a Court of Military Review shall be eligible to review the record of any trial if such member served as investigating officer in the case or served as a member of the court-martial before which such trial was conducted, or served as military judge, trial or defense [681]*681counsel, or reviewing officer of such trial.
As Appellant acknowledges and we agree, none of the members of this Court falls within the ambit of these prohibitions. Article 66(h) notwithstanding, “any relationship of a judge of the Court of Military Review which casts suspicion upon his fairness or impartiality provides a basis to seek his disqualification.” United States v. Kincheloe, 14 M.J. 40, 48 (C.M.A.1982) (citations omitted).
As the Court of Military Appeals did in Kincheloe, and the Army Court of Military Review did in United States v. Martinez, 19 M.J. 652 (A.C.M.R.1984), we shall look for guidance to the primary Federal statute concerning judicial disqualification, 28 U.S.C. § 455 (Supp. II 1990).10 This statute provides, in pertinent part:
§ 455. Disqualification of justice, judge, or magistrate
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
Accordingly, we look to each of the pertinent sections of 28 U.S.C. § 455. As subsection (b) contains the more specific provisions, we begin with 28 U.S.C. § 455(b)(1).
Appellant does not contend, nor is there any reason to believe, that any member of this Court harbors any “personal bias or prejudice” against him. As Appendix B reveals, the Court was concerned solely with a matter of law, and nothing conveyed by the Chief Judge to the Chief Counsel concerned “disputed evidentiary facts.” See Laird v. Tatum, 409 U.S. 824, 93 S.Ct. 7, 34 L.Ed.2d 50 (Memorandum of Mr. Justice Rehnquist) (1972); Cf. In re M. Ibrahim Khan, P.S.C., 751 F.2d 162 (6th Cir.1984) (In affirming a bankruptcy judge’s denial of a motion to disqualify him, the court opined that “bias sufficient to justify recusal must be a personal one and not one arising from the judge’s view of the law.” Id. at 164 [citation omitted]).
With respect to 28 U.S.C. § 455(b)(3), not only was no “opinion concerning the merits of the particular case in controversy” expressed, but neither this case, nor any other pending review in this Court, was even mentioned.
Returning to subsection (a) of 28 U.S.C. § 455, we note that the Eleventh Circuit has opined that
[t]here are twin, and sometimes competing, policies that bear on the application of [its] standard. The first is that courts must not only be, but must seem to be, free of bias or prejudice. Thus the situation is viewed through the eyes of the objective person. A second policy is that a judge, having been assigned to a case, should not recuse himself on unsupported, irrational, or highly tenuous speculation. If this occurred the price of maintaining the purity of the appearance of justice would be the power of ... parties to exercise a veto over the assignment of judges.
United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir.1986). See also United States v. DeLuna, 763 F.2d 897, 907 (8th Cir.1985) (“Every magistrate, judge and justice must ‘disqualify himself in any [682]*682proceeding in which his impartiality might reasonably be questioned.’ Disqualification is appropriate only if the facts provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge’s impartiality.” [citations omitted] [emphasis added]).
As this Court does not rely upon the existence of the Secretary’s memorandum to support any ruling in this case, the memorandum cannot be said to have affected the outcome. Cf. United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966) (“The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” 384 U.S. at 583, 86 S.Ct. at 1710. [emphasis added]). Moreover, on the question of disqualification, it is significant that this Court was not acting as an advocate either for or against Appellant. Rather, the Court was seeking to insure its continued ability to provide appellate review of all cases properly before it. To have stood by and done nothing would have been a virtual abandonment of our responsibilities to the military justice system imposed upon us by Congress in Article 66, UCMJ. In the absence of a better alternative, and none suggests itself to us, our communication with the Chief Counsel of the Coast Guard must be viewed as an act of jurisdictional self-preservation, similar to that of the Navy-Marine Corps Court of Military Review in U.S. Navy-Marine Corps Court of Military Review v. Carlucci, 26 M.J. 328 (C.M.A.1988). In that case, our sister Court filed a petition with the Court of Military Appeals seeking extraordinary relief in the nature of an injunction. This action was preceded by Court members’ extensive communications with officials in the offices of the Judge Advocate General of the Navy and the Department of Defense Inspector General. While the circumstances in that case and this are completely different, one of the underlying principles is the same. That is that a Court of Military Review such as ours is entitled to take necessary steps to insure the integrity of its judicial processes. We believe that, in seeking Secretarial appointment of our members, we have not violated this principle. Accordingly, viewing our actions from the objective perspective required by 28 U.S.C. § 455(a), we hold that we are not disqualified from deciding Appellant’s case.
A different principle of law also compels us to reject Appellant’s argument for our disqualification, i e., the “Rule of Necessity.” Simply stated, this rule provides that when all judges are disqualified to decide a case, no judge is disqualified. See United States v. Will, 449 U.S. 200, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980); Duplantier v. United States, 606 F.2d 654 (5th Cir.1979); Atkins v. United States, 214 Ct.Cl. 186, 556 F.2d 1028 (1977); Pilla v. American Bar Ass’n, 542 F.2d 56 (8th Cir.1976); United States v. Senior, supra. All five judges of this Court participated in the decision to seek the Secretary’s action. Although we hold that we are not disqualified in Appellant’s case, even if we otherwise might be so considered, the “Rule of Necessity” precludes our recusal or disqualification.
VI.
ACTION
The findings of guilty of Charge I, Specifications 1, 3, and 4, and Additional Charge I and its single Specification, are set aside and dismissed. The remaining findings of guilty are affirmed. Upon reassessment of the sentence in light of the reduced findings of guilty and the entire record of trial, United States v. Sales, 22 M.J. 305 (C.M.A. 1986), we are satisfied that the sentence is no greater than that which would have been imposed absent the now set aside findings of guilty. We also independently have reviewed the appropriateness of the sentence, United States v. Snelling, 14 M.J. 267 (C.M.A.1982), and find it appropriate. Accordingly, the sentence is affirmed. An appropriate supplemental court-martial order shall be issued to reflect the action of this Court on the findings and sentence and to correct the error noted in footnote 1.