(concurring in the result):
I agree with the court that the appellant’s conviction for negligent homicide must be set aside and that charge dismissed, but I cannot join the court on its journey to that conclusion. I agree with the court’s treatment of the conspiracy, order, drug use, and obstruction offenses, and I agree with the court’s decision to set aside the sentence and authorize a sentence rehearing.
I agree with the majority’s proposition that a Court of Criminal Appeals is not free to disregard precedent established by the Court of Appeals for the Armed Forces. I also believe, however, that a Court of Criminal Appeals is privileged, if not obliged, to distinguish contrary authority especially where that authority is constructed on unsettled legal ground, and that is why I would conclude that negligent homicide was available as an included offense of the charged offense of involuntary manslaughter. Having determined that the offense of negligent homicide was fairly and properly before the court-martial, I would then go on to answer the appellant’s assignment of error regarding the factual sufficiency of the evidence. I cannot find that the facts presented to the military judge were sufficient for him to conclude that the appellant was guilty of negligent homicide, and I therefore would set aside the guilty finding for negligent homicide and set aside the sentence.
Included Offenses, Notice, and Stare Decisis
I write first to voice my concerns about the potentially overbroad application of United States v. Jones, 68 M.J. 465 (C.A.A.F.2010), and United States v. Miller, 67 M.J. 385 (C.A.A.F.2009). Even though the parties in our case appear to agree that those cases, especially Jones, dictate the outcome here, I would limit those cases to the facts on which they were decided. So limited, those cases have very narrow application.
In Miller, the Court of Appeals was faced with a prosecution under Article 95, Uniform Code of Military Justice, 10 U.S.C. § 895. When the Army Court of Criminal Appeals found that a critical element of the offense— an attempt to apprehend — had not been established at the trial level, that court instead affirmed a finding of guilty of a “simple disorder,” invoking its authority under Article 79, UCMJ, to do so.
On appeal, the Court of Appeals determined that Miller had not been put on notice that his behavior might constitute a simple disorder. 67 M.J. at 385. I do not quibble with that determination. See also Manual for Courts-Martial, United States (2005 ed.), Part IV, ¶ 60c(5)(a)(preemption provisions). The Court of Appeals went beyond a simple resolution of the case, however, and declared that previous eases that could be interpreted to mean that service discredit and prejudice to good order and discipline existed in every enumerated offense (essentially, Articles 81 through 132) of the Code had gone too far and were thus overruled. Miller, 67 M.J. at 389 (proposition that clauses 1 and 2 of Article 134 are per se included overruled). The Court of Appeals reached this conclusion, incidentally, less than 6 months after it had reached a conclusion which, if not a polar opposite, was at least substantially to the contrary. See United States v. Conliffe, 67 M.J. 127 (C.A.A.F.2009)(holding that unlawful entry, in violation of Article 134, was an offense necessarily included within the ambit of housebreaking in violation of Article 130, UCMJ).
In Jones the Court of Appeals determined that indecent acts with another, at the time a violation of Article 134, was not a necessarily included offense of rape, a violation of Article 120, UCMJ. As the Court of Appeals framed the issue, it was “whether an offense is ‘necessarily included’ in, a subset of, or an LIO of a charged ‘greater’ offense when it has no elements in common with the elements of the charged offense but is nonetheless either listed as an LIO in the MCM or has been held by this Court to be an LIO on *599some other ground.” Jones, 68 M.J. at 467. The Court of Appeals later expanded upon this concern in noting the limitation of its holding: the ability of the President to declare that a particular example of an Article 134, UCMJ, offense is a lesser included offense of something Congress defined as a criminal offense in a separate section of the UCMJ, and which is defined by elements that have no common ground with Article 134, UCMJ. Id. at 471.
From a strict notice perspective, the court’s decision makes perfect sense given the facts of Jones: no penetration is necessary to commit an indecent act, no force or lack of consent need be shown. Conversely, sexual intercourse is not inherently “indecent” — repugnant to common propriety, likely to corrupt morals with regard to sexual relations — although in the context of rape it certainly appears to be. Had the Court of Appeals ended with a resolution of the question it said was presented, I would have no trouble with the course that it charted. The Court of Appeals did violence to the language of Article 79, however, and the notion of stare decisis — which affords a critical predictability to actions under not only the Code, which applies in all places and all times, but under any system of laws — when it issued its sweeping declaration that any cases that deviated from what it believes was the elements test were overruled.
Sadly, the Court of Appeals mixed distinct legal principles in dicta in the Jones decision. Although Jones purported to examine the notice afforded the airman regarding his conviction for an indecent act, the Court of Appeals further confused matters by discussing a line of cases — United States v. Teters, 37 M.J. 370 (C.M.A.1993), and its sequelae— that interpret and apply the Double Jeopardy clause of the fifth amendment, not the Due Process clause. Jones, 68 M.J. at 470-71. Turning to the case at bar, I have no doubt that the appellant could not now be prosecuted for any form of unlawful killing greater than negligent homicide, as a finder of fact has already concluded that only simple negligence, not culpable negligence or a higher degree of criminal liability, was involved in the death of the other Sailor.
The Court of Appeals was trying in Miller and Jones to build on a foundation it believed it had established in United States v. Medina, 66 M.J. 21 (C.A.A.F.2008), a case involving child pornography. The appellant in Medina was convicted of a “crime and offense not capital,” a clause 3 violation, but the Army Court of Criminal Appeals determined that, because some of Medina’s offenses occurred abroad, it was necessary to affirm a finding to a “lesser” clause 1 or clause 2 offense. 66 M.J. at 24. The Court of Appeals reversed the judgment of the Army Court, holding that because Medina had not been informed through the charging document that he was facing prosecution for a prejudicial or service-discrediting series of actions, his conviction on the “alternative theory” violated due process. Id. at 28.
The Court of Appeals was correct in its conclusion, but it created confusion when it lumped all three clauses of Article 134 together in its reasoning as cut from the same cloth. Id. at 26 (viewing as alternative theories of prosecution is consistent with precedent). In fact, as the Court of Appeals later noted, a clause 3 prosecution will never fairly embrace the elements of clause 1 or clause 2, as clause 3 is merely a vehicle for bringing before a court-martial a violation of substantive state or federal criminal law. No state or federal offense has as an element the effect on the reputation of the service or the effect on military efficiency. Id. In a case such as that, a clause 1 or clause 2 allegation is in fact an “alternative theory of guilt.” Id. at 27. I would also agree in such an instance that it requires notice and proof of additional elements. I also suspect that maximum punishments are likely affected by the charging method: an attempted violation of section 2422 of title 18, for example, if charged under clause 3 would carry the statutory maximum of life imprisonment, whereas if one were to charge the same conduct as a clause 1 or 2 violation and then reach a guilty finding of an attempted violation of clause 1 or 2, the maximum confinement would be the 20 years under Article 80.
In Medina, the Court of Appeals was truer to the holdings of Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 *600(1989) and Dunn v. United States, 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979), than it has been in subsequent decisions. In Schmuclc, the Court rejected the “inherent relationship” test and instead adopted its “elements” test when it reviewed a failure to instruct, under the Federal Rules of Criminal Procedure, on a lesser included offense appearing in a completely different title of the United States Code, the greater offense being a mail fraud in violation of title 18,- the assumed lesser a consumer protection violation founded in title 15. As the Court noted in its opinion, the “elements approach involves a textual comparison of criminal statutes and does not depend on inferences that may be drawn from evidence introduced at trial.” 489 U.S. at 720, 109 S.Ct. 1443. It contrasted that simplicity with the “inherent relationship” approach, which requires a determination that the offenses protect the same interests and that “in general” proof of the lesser “necessarily” involves proof of the greater. Id. at 721, 109 S.Ct. 1443. Particularly in Schmuclc, facts necessary to prove one offense had no relevance to the other. Id. at 722, 109 S.Ct. 1443.
Dunn was a case involving variance between allegation and proof, and is often cited by the Court of Appeals for the proposition that it is as much a due process violation to be imprisoned following conviction on a charge on which one was never tried as it is to be convicted on a charge that was never made. E.g., United States v. Riley, 50 M.J. 410, 415 (C.A.A.F.1999). Dunn involved a defendant who had been charged with making a false statement in connection with grand jury proceedings. The Government’s proof included the statement (a sworn affidavit provided to the grand jury target’s attorney) alleged in the indictment, and during its ease in rebuttal it introduced a second statement (a court appearance subsequent to the affidavit, in which the defendant adopted the contents of the affidavit) allegedly false in material particulars. While Dunn was convicted of false statement related to the charged statement, the United States Court of Appeals for the Tenth Circuit affirmed a violation based only on the contents of the rebuttal statement, holding as a matter of law that the affidavit to the target’s attorney was not an “ancillary proceeding” to the grand jury and thus not covered by the specific statute. 442 U.S. at 106, 99 S.Ct. 2190. The Supreme Court reversed the judgment of the Tenth Circuit, reasoning that the defendant was deprived of fair notice that he would be defending, substantively, against the statement made in the later, actual, ancillary proceeding. Id. at 107, 99 S.Ct. 2190.
Contrast Miller, Jones, Medina, Schmuclc, and Dunn with an alleged violation of an enumerated article: the service member is aware that, as a service member, he is held to a standard of conduct that must promote, or at least must not detract from, military discipline and efficiency, and he is aware that his calling in the profession of arms sets him apart from civil society. See Parker v. Levy, 417 U.S. 733, 743, 751, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). Cf. Art. 5, UCMJ, 10 U.S.C. § 805 (“This chapter applies in all places”). Indeed, the member’s “privileged status” as a combatant under the law of armed conflict depends on this notion of discipline and efficiency. I read Supreme Court precedent and the Code to supply the needed notice with respect to the General Article.
In the case before us, the appellant was charged with the involuntary manslaughter of his classmate because of his failure to obtain necessary medical care and because of his effort to secrete the doomed Sailor’s body. The elements of the offense with which he was charged and the offense of which he was convicted overlap to a great extent. To distinguish the language of Jones, the elements of involuntary manslaughter and negligent homicide have substantial common ground and many elements in common — a dead person; an act or an omission by the accused; unlawfulness of the killing; and both include a breach of a duty of care. I conclude that the concerns of the fifth amendment are here met: the appellant was placed on notice, through the specification, of the substantive and theoretical bases for his prosecution, and he is protected against successive prosecutions for the same act.
*601One important distinction between involuntary manslaughter and negligent homicide is that conviction of the former requires proof of culpable negligence, while conviction of the latter requires proof of simple negligence. The culpable negligence ordinarily cannot be proven in civilian prosecutions absent some sort of “special relationship” between the alleged perpetrator and the alleged victim— e.g., parent and child; doctor and patient; driver and passenger. What is more, the duty in civilian society is violated only by culpable negligence, not simple negligence. A mere passerby is under no duty to alert the authorities if he sees a stranger in distress; no witness to the death of Kitty Ge-novese was indicted for failing to render aid or call the police. Going beyond the hypothetical to the actual, and consistent with the decades of precedent cited in the lead opinion here, it is only because the appellant, having entered a specialized society that places emphasis on military efficiency and earing for shipmates, is believed to have failed by simple negligence in that duty that he faced criminal exposure.
Carried to a logical stopping point, not even an extreme one, the Court of Appeals’ decisions in Jones and Miller will produce many unpalatable, most likely unintended, outcomes. Charge sheets will grow in length and complexity, as charging authorities seek to “cover all the bases” when alleging violations. Confusion will abound as to elements and maximum punishments (as, for example, would be the case in charging attempted enticement of a minor to engage in criminal sexual activity under Article 80 as opposed to under Article 134, clause 3). Claims of unreasonable multiplication of charges will increase geometrically, making for complicated instructions to the members, potentially inconsistent findings, and headaches for reviewing authorities and appellate courts. Persons convicted under “alternative theories of prosecution” for a single offense of sexual misconduct may face more onerous registration and monitoring requirements due to the number of convictions, notwithstanding they are merged for punishment. The character trait of “good military character,” formerly deemed relevant to contest almost every charge under the Code, will now be limited, on the basis of relevance, to those offenses where the trait is truly implicated — it will not be available to defend against battery, but it might be available to defend against battery on a commissioned, warrant, noncommis-sioned, or petty officer. Service members risk losing their “privileged combatant” status if their commanders lose the ability to maintain good order and discipline. Cf. Jones, 68 M.J. at 475 (Baker, J., dissenting).
In sum, I worry about the potentially over-broad reach of Jones and Miller. Those two cases could wipe away decades of precedent — of particular concern in this ease, the precedent noted in the majority opinion regarding the relation between involuntary manslaughter and negligent homicide; could do serious violence to the concept of stare decisis — particularly the predictability that such a doctrine affords; and could turn an “eminently straightforward” approach to military justice into a Gordian knot of confusion.
Factual Sufficiency of the Evidence
Because I have concluded that negligent homicide is necessarily included in involuntary manslaughter, I would move to consider the factual sufficiency of the evidence. When our court considers an appeal of a court-martial conviction and sentence, we may only affirm so much of the findings and sentence as are correct in law and fact. Art. 66(c), UCMJ, 10 U.S.C. § 866. In determining the “factual sufficiency” of a finding, we must ourselves be convinced beyond a reasonable doubt of the appellant’s guilt, taking into account the fact that we were not present when the evidence was presented. United States v. Turner, 25 M.J. 324, 325 (C.M.A.1987).
I broadly accept the majority’s recitation of the facts. I further accept their statement that his ease can rightly be described as tragic. I note that Machinist’ Mate Fireman Recruit (MMFR) [S], the deceased, used a considerable amount of cocaine and heroin over the course of just a few hours, in amounts so high that testing equipment in a toxicology laboratory simply fixed the amount at “greater than” a certain concentration. After ingesting the heroin, MMFR [S] soon began to mumble incoherently and *602to nod off to sleep; the appellant at that point tried to speak with MMFR [S] and to rouse him, but to no effect.
The appellant initially thought he should summon emergency help, but he feared that his own drug use would be discovered and he instead asked Shorty to drive him and MMFR [S] to a hotel where a number of other junior Sailors had gathered. Once at the hotel, the appellant left MMFR [S] in the grass near the edge of the parking area. MMFR [S] was still mumbling, incoherent, and largely unresponsive to the appellant’s attempts to engage him. The appellant went in to the hotel, socialized, and came back out after some amount of time to check on MMFR [S], who at that point was completely unresponsive. The appellant socialized some more and again cheeked on MMFR [S], who again was unresponsive. Several hours later, a passerby noticed MMFR [S] and summoned emergency authorities. The emergency authorities determined that MMFR [S] was, in fact, dead, and transported the body to the local medical examiner’s office. The medical examiner fixed the cause of death as acute heroin and cocaine intoxication and estimated that the time of death was some time in the early morning of 20 July, probably 4-6 hours before the passerby discovered the body. It was unclear when death occurred relative to the appellant’s arrival at the hotel and subsequent trips to check on MMFR [S].
After the dead body was discovered, local police began an investigation, and the appellant’s actions during the course of the investigation led to the obstruction charges against him. There is no link, explicit or implicit, between the conduct giving rise to the obstruction charges and the demise of the deceased.
The key element to proving negligent homicide is whether the act or omission of the appellant amounted to simple negligence, that is, the lack of care of the safety of others which a reasonably careful person would have exercised under the same or similar circumstances. Assessing this element involves examining substantive military law which in turn rests on military tradition, necessity, and experience. United States v. Martinez, 42 M.J. 327, 330 (C.A.A.F.1995). Because I am not convinced beyond a reasonable doubt that the appellant’s acts or omissions in this ease breached this standard, see United States v. Lingenfelter, 30 M.J. 302, 307 (C.M.A.1990), I would disapprove the guilty finding for the negligent homicide.
I recognize and support the duty, forcefully expressed in Martinez, for all members of the Armed Forces to take care of themselves and their fellow warriors. 42 M.J. at 330 n. 5. This duty includes the need to summon law enforcement or medical help when the circumstances warrant. I nonetheless am unwilling to attach criminal liability in this case to a service member who failed to prevent his liberty buddy from engaging in criminal activity that led to the buddy’s death. The appellant’s failure to prevent the deceased from using illegal drugs, therefore, cannot be viewed as a negligent act or omission that led to his death. The question then becomes whether the failure to summon emergency care played a material role in the death of the shipmate. Lingenfelter, 30 M.J. at 307.
The medical examiner who testified for the Government noted that both cocaine and heroin were present in lethal amounts, an opinion seconded by the defense toxicology expert. The Government witness testified that a drug available to emergency responders, Narcan, could have reversed the effect of an opioid such as heroin. The medical examiner cautioned, however, that the Narcan would have had no effect on any damage caused by cocaine. He also could not say with certainty that resolution of the heroin-induced physical problems would have made the cocaine-induced problems so obvious that they could have been effectively treated to reverse the effect of the cocaine.
The Government also offered evidence from a member of the local rescue agency who examined the body; that responder had been trained to administer Narcan. The Government did not introduce any evidence, however, that the appellant was aware of the capabilities of the local EMS or the effect of Narcan. Cf. United States v. Lawson, 36 M.J. 415, 423-24 (C.M.A.1993)(Wiss, J., concurring)(in dereliction cases, tailor duty to *603knowledge and experience of person allegedly in breach). No witness testified, moreover, that administration of Narean would absolutely have saved the life of the deceased; the tenor of the testimony was simply that the Narean would make the effect of the heroin manageable.
It is also unclear from the state of the evidence before us whether the appellant even recognized his liberty buddy’s extreme state of distress. The Government offered no evidence from which I can conclude that the appellant had any specialized medical or emergency training, that he had familiarity with the effects of cocaine or heroin on other persons, or that he believed the sleepiness and later unresponsiveness demonstrated by the deceased were anything other than reactions one might expect, especially in light of Shorty’s observations that those reactions were in fact normal. I return as well to the point that cocaine and heroin were both present in the deceased in lethal amounts; if the amounts were in fact lethal, and the question was merely one of how long it would take the doomed Sailor to die, then no amount of emergency aid, however quickly rendered, would have availed the deceased. In this regard, I note that the death certificate, Prosecution Exhibit 5, cites the cause of death as cocaine and heroin intoxication, and puts the interval between onset and death at “minutes”. No testimony was offered to put this exhibit into some sort of context — e.g., whether the “interval” referred to the amount of time that passed between the body’s metabolizing the substance to a lethal concentration and death or whether it instead referred to the amount of time between ingesting a lethal amount and the death.
I do not mean, in reaching this conclusion, to suggest that the appellant’s actions were what should be expected of a shipmate or liberty buddy. I return again to the sentiments expressed in Martinez about the higher standard to which service members are rightly held. I am simply not satisfied beyond a reasonable doubt that the appellant’s acts or omissions played a material role in the death of his liberty buddy.