(concurring):
16. As to the granted issue, I agree with the majority’s treatment of appellant’s claims made thereunder. Also, I agree with its conclusion as to the specified issue that, notwithstanding an absence of prejudice in appellant’s court-martial, the complained-of portion of the commander’s letter was an unlawful command effort to exert influence over courts-martial, including appellant’s. See Art. 37(a), Uniform Code of Military Justice, 10 USC § 837(a).
17. I write separately to address an aspect of the granted issue that troubles me considerably in this case—but one which the defense did not surface at trial and did not pursue on appeal. It has to do with the relationship among the concepts of proximate cause, immediate cause, independent and intervening cause, and contributory negligence. In my opinion, this case illustrates the need for military judges to be especially sensitive to the duty to tailor instructions to the evidence in the case. Cf. United States v. Martinez, 40 MJ 426, 431 (CMA 1994); United States v. Groce, 3 MJ 369, 370-71 (CMA 1977). That extra effort will help members understand instructions within the context of the evidence they have heard—instructions that, when given in general terms, seem overly complex and convoluted.
I
18. The evidentiary contest at trial focused on whether the victim was impaired by alcohol and, relatedly, whether appellant knew of the impairment; and whether the victim was contributorily negligent so as to sever the proximate-cause linkage between appellant’s negligence and the victim’s death. The alleged negligence of the victim himself included, in addition to his drunkenness and his driving while in that state: not wearing a seat belt at the time of the accident; wearing sunglasses while driving at night, thereby reducing his vision; and not using the high beam on the car’s headlights, which further reduced his ability to see.
19. After defining and contrasting culpable negligence (required for the charged offense of involuntary manslaughter) and simple negligence (required for the lesser-included offense of negligent homicide), the military judge offered these instructions:
In argument counsel mentioned the terms “proximate cause,” “intervening cause.” The act of the accused in this case must not only amount to culpable negligence, but must also be a proximate cause of the death of Sergeant Sauceda. Proximate cause means that the death must have been the natural and probable result of the accused’s culpably negligent act. The proximate cause does not have to be the only cause, but it must be a contributory cause which plays an important part in bringing about the death. Now, if the death of Sergeant Sauceda occurred only because of some unforeseeable, independent, intervening cause which did not involve the accused, then the accused may not be convicted of involuntary manslaughter. Again, the burden is on the prosecu*337tion to prove beyond a reasonable doubt that there was no intervening independent cause, and that the accused’s culpable negligence was a proximate cause of the victim’s death. Any questions about that instruction, gentlemen? Okay, no questions. Finally, there is evidence in this case raising the issue of whether the deceased, Sergeant Sauceda, failed to use reasonable care and caution for his own safety. If the accused’s culpable negligence was a proximate cause of death, then the accused is not relieved of criminal responsibility just because the negligence of the deceased may also have contributed to his death. The conduct of the accused [DECEASED?] is, however, important on the issue of whether the accused’s culpable negligence, if any, was the proximate cause of death. Accordingly, a certain act may be a proximate cause of death even if it was not the only cause, as long as it is a direct or contributing cause and plays an important role in causing the death. An act is not a proximate cause of death if some other force independent of the accused’s act intervened as a cause of death. Is that instruction clear?
Now as the facts in this case relate to this lesser-included offense [of negligent homicide], the matters of proximate cause and intervening cause also apply to the lesser-included offense. That is, the act alleged must not wholly [ONLY?] amount to simple negligence, but it must be the proximate cause of Sergeant Saueeda’s death. This means that the death of Sergeant Sauceda must have been the natural and probable result of the accused’s negligent act. In determining this issue, you should consider all facts and circumstances.
Now the accused will be relieved of criminal responsibility for the death of the victim if the death was the result, again, of some unforeseeable, independent intervening cause which did not involve the accused. If the victim died only because of this independent intervening cause, then the act of the accused was not the proximate cause of the death, and the accused cannot be found guilty of negligent homicide. Again, the burden is on the government to establish beyond a reasonable doubt that there was no independent intervening cause and that the accused’s negligence was a proximate cause of the death of the victim.
Finally, as it may relate to any issue of contributory negligence in this case, there is some evidence in this case which raises the issue of whether the deceased, again, failed to use reasonable care and caution for his own safety. If the accused’s negligence was a proximate cause of the death, the accused is not relieved of criminal responsibility just because the negligence of the deceased may have contributed to the death. The conduct of the deceased is, however, again important on the issue of whether the accused’s negligence, if any, was a proximate cause of death. Accordingly, a certain act may be a proximate cause of death, even if it is not the only cause, as long as it is a direct or contributing cause and plays an important role in causing the death. Thus an act is not the proximate cause of the death if there is that other force independent of the accused’s act which in that other force intervened as the cause of death.
(Emphasis added.)
20. After the members had deliberated for about 2 hours, they returned to court to ask for a lunch break. The request granted, the members reconvened about an hour later with a request that, prior to continuation of deliberations, the military judge “go over with us again the definitions of simple and culpable negligence.”
21. The military judge repeated the instructions that he had given earlier on these subjects and, again at the members’ request, reinstrueted on certain voting procedures and on the elements of involuntary manslaughter. Regarding the elements, the military judge instructed, in part, that the members had to find that “the death [of Sergeant Sauceda] resulted from an act of the accused, in this ease giving his keys to the deceased while the deceased was under the influence of alcohol____”
22. At this point, the members renewed their deliberations. Nearly 2% hours later *338they returned with a finding of guilty of the lesser-included offense of negligent homicide.
II
23. Except as to the capitalized words in brackets in the quoted instruction, ¶ 19, the instructions on negligence, proximate cause, intervening cause, and contributory negligence substantially followed the model instructions on those subjects found in paragraphs 3-88 and 3-154, Military Judges’ Benchbook at 3-177 and 3-309 (Dept, of the Army Pamphlet 27-9 (Change 2) (15 Oct. 1986)). I take no issue here with those instructions, either as to their correctness or, in most instances, as to their adequacy.
24. In some eases, however, the evidence that the members must sort out to find the facts is so complex that common sense ought to suggest that the military judge should tailor these technical and conceptual instructions so that the members can understand what they mean in the context of the case at hand. I believe that this is such an instance.
25. For example, if not at the outset then at least when the members indicated their confusion by returning to the courtroom for reinstruetion, the military judge should have considered instructions substantially as follows:
In order to find the accused guilty of the charge of either involuntary manslaughter or negligent homicide, you must find: FIRST: that the victim’s drunkenness— rather than some unforeseeable, independent, intervening force—was the immediate cause of the accident that resulted in his death; and,
SECOND: that the accused knew or should have known that the victim was drunk, as I have defined that term for you; and,
THIRD: that the accused was negligent in giving his keys to the victim, considering the accused’s state of knowledge of the victim’s condition, and that negligence was the proximate cause (as I have defined that term for you) of the accident and death; and
FOURTH: that the victim’s drunkenness, his failure to wear a seat belt, and his actions that affirmatively diminished his ability to see (that is, his wearing tinted glasses while driving at night and his failure to use the high beams on the car’s headlights)—if you find these as facts— was not contributory negligence; or
If you find these facts and determine that the victim was contributorily negligent, then you must further find that his negligence did not “loom so large” in comparison with the accused’s negligence that the accused’s negligence did not play an important role in causing the death. That is, that the victim’s contributory negligence was not so substantial in comparison with the accused’s negligence that it effectively severed the accused’s negligence as a proximate cause of the accident leading to the victim’s death.
(This is not a quotation.)
26. In other words, even if appellant was negligent in giving his keys to a person he knew or should have known was intoxicated, that negligence is not a proximate cause of the subsequent accident and death unless the driver’s drunkenness, itself, was the immediate cause of the accident. If, notwithstanding the driver’s intoxication, the accident occurred due to some other circumstance, then appellant’s negligence is not a proximate cause. Judge Cox, writing for a unanimous Court in United States v. Lingenfelter, 30 MJ 302, 306 (1990), offered these analogous illustrations:
For example, had it been a parachutist that dropped suddenly out of the sky in front of appellant’s vehicle (assuming appellant had no reason to know he was in the middle of a drop zone) and had the circumstances been such that no one driving lawfully and exercising all due care could have avoided striking the parachutist given the minimal notice, it would not have been the fact of the drunken driving that “thereby caused” the injury.
Similarly, if one bent on self-destruction had hidden behind an obstacle by the roadside and had hurled himself into appellant’s on-rushing vehicle, and the same result would have occurred had the driver been sober and driving with all due care, it *339would not have been the fact of the drunken driving that “thereby caused” the injury....
27. Further, even if appellant was negligent, if the victim was contributorily negligent and if that contributory negligence was so substantial, when compared to the accused’s negligence, that the latter became relatively unimportant as a contributing cause, then appellant’s negligence was not a proximate cause. As Judge Cox wrote in Lingenfelter, after a short discussion of United States v. Cooke, 18 MJ 152 (CMA 1984):
Whether appellant’s drunken driving “play[ed] a material role in” Mr. Strubbe’s demise or whether Mr. Strubbe’s own alleged negligence “loom[ed] so large” as to relegate appellant’s conduct to less than “a substantial factor in the” death are calls to be made in the first instance by the factfinder.
30 MJ at 307. As applied to this case: Whether appellant’s negligence in giving his ear keys to his drunk friend played a material role in the subsequent accident and death of his friend—or whether, instead, his friend’s own negligence in driving while intoxicated, without wearing a seat belt, while wearing glasses with tinted lenses at night, and not using the high beams on the car, “loom[ed] so large” as to relegate appellant’s negligence to less than “a substantial factor in the” accident and resultant death—are calls for the members to make.
Ill
28. As I mentioned at the outset of this opinion, however, appellant lodged no objection to any of the relevant instructions nor asked for any more-tailored ones. Even on appeal, the thrust of his complaints is not the absence of understandable instructions, made so by being tailored to the evidentiary context of the case. Since the instructions that were given are legally correct and not so convoluted as to be ineffective, I conclude that there is no appellate error worthy of reversal.
29. Nonetheless, I encourage military judges to use the opportunity in their instructions to offer truly helpful guidance to the members and to make sense, in the context of the case at hand, out of instructions that are frequently fraught with unfamiliar concepts, terms of art, or other legalese.