PRICE, J., delivered the opinion of the court in which MITCHELL, S.J., MAKSYM, S.J., CARBERRY, S.J., PERLAK, J., and BEAL, J., concur. BOOKER, S.J., filed an opinion concurring in the result. REISMEIER, C.J., and PAYTON-O’BRIEN, J., did not participate in the decision of this case.
PUBLISHED OPINION OF THE COURT
PRICE, Judge:
The appellant entered mixed pleas to offenses related to the death of another Sailor. A military judge sitting alone as a general court-martial convicted the appellant of conspiracy to possess cocaine, violating an order, use of cocaine, obstruction of justice, and negligent homicide, violations, respectively, of Articles 81, 92, 112a, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 892, 912a, and 934.1 The convening authority [592]*592approved the adjudged sentence of confinement for 66 months, forfeiture of all pay and allowances, reduction to pay grade E-l, and a dishonorable discharge from the United States Navy.
The appellant raises three assignments of error asserting that: (1) the finding of guilty for negligent homicide is legally and factually insufficient where the appellant’s acts or omissions did not amount to simple negligence; (2) even if his acts or omissions amounted to simple negligence, that negligence was not the proximate cause of Machinist’s Mate Fireman Recruit (MMFR) [S]’s death, and (3) that his conviction for negligent homicide as a lesser included offense of involuntary manslaughter violates the requirements of due process and Article 79, UCMJ, 10 U.S.C. § 879. This court specified two additional issues regarding variance between the alleged offense of violation of a lawful order, the military judge’s finding of guilty, and subsequently issued special findings that reflect findings of guilty for violation of a lawful general order.
Based on our review of the appellant’s third assigned error and the issues specified by this court, we set aside the guilty findings of negligent homicide and violating an order,2 dismiss Charges II and IV and the specifications thereunder, affirm the remaining findings of guilty, set aside the sentence, and authorize a rehearing as to the sentence.
Background
This case can rightly be described as tragic. The appellant and MMFR [S] were friends and schoolmates at an apprenticeship course at Naval Station Great Lakes, Illinois. The two shipmates went out on liberty in the local area on 19 July 2008, and less than 24 hours later MMFR [S] was dead of cocaine and heroin intoxication.
The appellant and MMFR [S], his then liberty buddy,3 left the Naval Station and headed toward a local mall. On the way, they met “Shorty,” a person who had eon-tacts with drag suppliers. Shorty provided them a quantity of cocaine, which the Sailors ingested. A short while later, they again contacted Shorty, who procured more cocaine and also, at MMFR [S]’s request, some heroin. After ingesting additional cocaine and the heroin, MMFR [S] immediately began to mumble incoherently and to nod off to sleep.
Though immediately concerned for MMFR [S]’s welfare, the appellant did not seek emergency medical assistance due to his concern that both Sailors drug use would be discovered. Instead, he asked Shorty to drive him and MMFR [S] to a hotel where other junior Sailors had gathered. Once at the hotel, the appellant and Shorty earned the incoherent MMFR [S] from the car and placed him in the grass near the parking lot.
The appellant then entered the hotel where the other Sailors were socializing, “had a beer or two,” and later returned to check on MMFR [S]. Though still breathing, MMFR [S] was unresponsive to the appellant’s efforts to rouse him through talking and slapping. Realizing MMFR [S] was “kind of in the open,” the appellant “pulled [him] behind a larger bush or some brush,” and returned to the party.
The appellant cheeked on MMFR [S] at least one more time before concluding that he was dead. The then panicked appellant returned to the party and later discarded MMFR [S]’s cell phone, military identification card, and debit card.
Several hours later, a passerby noticed MMFR [S]’s body in the grass and summoned emergency authorities. The medical examiner fixed the cause of death as heroin and cocaine intoxication. After MMFR [S]’s 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.
[593]*593I. Negligent Homicide as a Lesser Included Offense of Involuntary Manslaughter
The appellant asserts that negligent homicide does not satisfy the statutory elements test for lesser included offenses [hereinafter LIOs] as it includes a statutory element not present in the charged offense of involuntary manslaughter, and that he was not otherwise provided notice of the need to defend against that charge as required by the Due Process Clause of the Constitution.
The Government concedes that as a result of the United States Court of Appeals for the Armed Forces (CAAF) recent decision in United States v. Jones,4 and under the facts of this ease, negligent homicide no longer satisfies the Constitutional or statutory requirements for an LIO of involuntary manslaughter. However, the Government argues that the appellant was availed of his Constitutional right to notice to be prepared to defend against the charge of negligent homicide and requests that we affirm the findings of guilty.
A.Principles of Law
“The Constitution requires that an accused be on notice as to the offense that must be defended against, and that only lesser included offenses that meet these notice requirements may be affirmed by an appellate court.” United States v. Miller, 67 M.J. 385, 388 (C.A.A.F.2009)(citing Jackson v. Virginia, 443 U.S. 307, 314, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979))(additional citations omitted). Consonant with these Constitutional principles, the Uniform Code of Military Justice provides that an accused “may be found guilty of an offense necessarily included in the offense eharged[.]” Article 79, UCMJ; see also Miller, 67 M.J. at 388. Where comparison of the elements of two distinct offenses reveals that one of those offenses is not a necessarily included offense of the other, “the requirement of notice to an accused may be met if the charge sheet ‘make[s] the accused aware of any alternative theory of guilt.’ ” Miller, 67 M.J. at 389, n. 6 (quoting United States v. Medina, 66 M.J. 21, 27 (C.A.A.F.2009)).
B. Questions Presented
The questions presented in this appeal are: (1) whether, following the CAAF decisions in Miller and Jones, negligent homicide constitutes, under Article 79, UCMJ, an LIO of involuntary manslaughter, and (2) if not, whether the appellant was otherwise availed of his Constitutional right of notice to be prepared to defend against the charge of negligent homicide. We review these questions of law de novo. Id. at 387.
C. Discussion
(1) Post-Jones is negligent homicide an LIO of involuntary manslaughter?
The appellant and the Government agree that, post-Jowes, negligent homicide no longer qualifies as an LIO of the charged offense of involuntary manslaughter. See Arts. 119 and 134, UCMJ. We agree.
This conclusion, though undisputed by the parties, constitutes a significant change to military jurisprudence. At the time of the appellant’s conviction, negligent homicide had been recognized as an LIO of involuntary manslaughter in the military since before enactment of the Uniform Code of Military Justice in 1951. See generally United States v. Kirchner, 4 C.M.R. 69, 71, 1952 WL 2689 (C.M.A.1952); United States v. Romero, 1 M.J. 227, 228 n. 1 (C.M.A.1975); United States v. Kick, 7 M.J. 82, 85 (C.M.A.1979); United States v. Harrow, 65 M.J. 190, 202 (C.A.A.F.2007) United States v. Romero, 1 M.J. 227, 229 (C.M.A.1975) United States v. Romero, 1 M.J. 227, 229 (C.M.A.1975) United States v. Romero, 1 M.J. 227, 229 (C.M.A.1975).
However, Miller and Jones dramatically changed the landscape of whether violations of Article 134 may qualify as LIOs of offenses enumerated in the Uniform Code of Military Justice.
First, in Miller, the CAAF addressed the question “whether a simple disorder under Article 134, UCMJ, was a lesser included offense of the violation of Article 95, [594]*594UCMJ[.]” Miller, 67 M.J. at 387 (footnotes omitted). Before setting aside and dismissing the simple disorder, the CAAF overruled their previous decisions “[t]o the extent those cases support the proposition that clauses 1 and 2 of Article 134, UCMJ, are per se included in every enumerated offense[.]” Miller, 67 M.J. at 389 (overruling in part United States v. Foster, 40 M.J. 140 (C.M.A.1994)).
This per se or implied presence of the so-called terminal element long provided the legal predicate for the conclusion that charging a violation of an enumerated article “provide[d] sufficient notice of the element of prejudice to good order and discipline or service discrediting conduct,” thus rendering conduct proscribed under Article 134 a potential LIO of the enumerated offenses. Id. at 388. Accordingly, one impact of Miller was to bring into question the continued validity of Article 134 clause 1 or 2 offenses, as LIOs of offenses enumerated in Articles 81 through 132, UCMJ.
Then, in Jones, the CAAF addressed, “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 some other ground.” Jones, 68 M.J. at 466 (citation omitted). The court answered this question in the negative.
The Jones opinion addresses three distinct issues: (1) the method for determining what constitutes an LIO under Article 79, UCMJ, (2) the role of the President in defining LIOs of offenses specifically enumerated in the UCMJ, and (3) the continued validity of prior holdings of the CAAF regarding Article 134 clause 1 or 2 offenses, as LIOs of those enumerated offenses.
In Jones, the CAAF returned to the elements test as the primary, if not sole, method for determining what constitutes an LIO under Article 79, UCMJ. Specifically, the court discussed adoption of the elements test for determining LIOs under Article 79 after the Supreme Court’s decision in Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). Jones, 68 M.J. at 470 (citing United States v. Teters, 37 M.J. 370, 375-76 (C.A.A.F.1993)). After discussing post-Teiers deviations from that test, the court overruled all intervening decisions “[t]o the extent [they] deviated from the elements test[.]” Id. at 472.
The CAAF also concluded that the President’s identification of LIOs in the Manual for Courts-Martial is not binding on the court, particularly where the President declares “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 472.
Finally, and as previously discussed, the court overruled all intervening decisions “[t]o the extent [they] deviated from the elements test[.]” Id. at 472 (citations omitted).
Although we share many of our dissenting brother’s concerns regarding the broad impact of Jones vis-a-vis the doctrine of stare decisis, and agree that that impact is largely attributable to dicta, the impact of Jones is very broad indeed. In his dissent, Judge Baker described this impact: “[a]s a result, because the statutory elements of clauses 1 and 2 of Article 134, UCMJ ... do not and cannot line up with any of the enumerated offenses, the majority’s decision means that offenses charged under clauses 1 and 2 of Article 134, UCMJ, can never be lesser included offenses to any other punitive article in the UCMJ, or with respect to clause 3 of Article 134, UCMJ.” Id. at 474 (Baker, J. dissenting).
Here we need only address Jones’ impact on the appellant’s conviction of negligent homicide as an LIO of the charged offense of involuntary manslaughter.
First, Jones declares a “new rule” applicable to cases on direct appeal, and thus is applicable here. See United States v. Harcrow, 66 M.J. 154, 159 (C.A.A.F.2008)(quoting Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997))(“where the law at the time of trial was settled and clearly contrary to the law at the time of appeal — it is enough that an error [595]*595be plain at the time of appellate consideration”).
Second, two of the CAAF’s decisions subsequent to Jones inform our analysis. In a summary disposition, the court noted that “in light of [/owes] we hold that indecent assault under Article 134 ... is not a lesser included offense of rape under Article 120, UCMJ[.]” United States v. Burleson, 69 M.J. 165 (C.A.A.F.2010). Compare United States v. Headspeth, 10 C.M.R. 133, 135, 1953 WL 1790 (C.M.A.1953)(“indeeent assault is a lesser included offense of rape”); United States v. Brown, 65 M.J. 356, 360 (C.A.A.F.2007)(in-deeent assault conviction as LIO of rape affirmed). And in United States v. Yammine, 69 M.J. 70 (C.A.A.F.2010), the CAAF noted that “under [Jones] indecent acts with a child under Article 134, UCMJ, is not a lesser included offense of sodomy under Article 125, UCMJ.” Id. at 79 n. 7.
We therefore conclude that post-Jones, the question of whether negligent homicide constitutes an LIO of involuntary manslaughter “must be determined with reference to the elements defined by Congress, for the greater offense.” Jones, 68 M.J. at 471. We will apply the CAAF’s definition of the statutory elements test from Jones in answering this question.
Under the elements test, one compares the elements of each offense. If all of the elements of offense X are also elements of offense Y, then X is an LIO of Y. Offense Y is called the greater offense because it contains all of the elements of offense X along with one or more additional elements.
Id. at 470.
Congress defined involuntary manslaughter by culpable negligence as: “Any person subject to [the UCMJ] who, without an intent to kill or inflict great bodily harm, unlawfully kills a human being — by culpable negligence[.]” Article 119(b), UCMJ, 10 U.S.C. § 919.5
Congress defined clauses 1 and 2 of Article 134 as: “all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces.”6
Comparison of either the statutory elements or the Presidentially described elements, reveals that involuntary manslaughter does not include, as an explicit element, either terminal element of Article 134 clauses 1 or 2 (e.g., that the conduct was to the prejudice of good order and discipline in the armed forces, or of a nature to bring discredit upon the armed forces). Therefore unless the terminal element is otherwise present, negligent homicide cannot satisfy the statutory elements test as “all of the elements of [negligent homicide] are [not] also elements of [involuntary manslaughter].” Jones, 68 M. J. at 470.
As previously discussed, in Miller the CAAF rejected the implicit presence premise of clauses 1 and 2 of Article 134, UCMJ, in offenses enumerated under the Code. In Jones the CAAF concluded the President’s listing of LIOs, though potentially persuasive, is of no import when the prospective LIO does not first satisfy the statutory elements test. By overruling all post-Teters decisions that deviate from the statutory elements test, the court made clear that the statutory elements test is the primary, if not sole, basis for determining whether an offense qualifies as an LIO of another offense under Article 79, UCMJ.
Application of Miller and Jones to the facts present here leads to only one conclu[596]*596sion, negligent homicide does not satisfy the statutory elements test as an LIO of the charged offense of involuntary manslaughter.
(2) Was the appellant otherwise availed of his Constitutional right of notice to be prepared to defend against the charge of negligent homicide?
The appellant asserts that Jones is dispositive, that he was not otherwise placed on notice of the requirement to defend against the charge of negligent homicide by the specification of the charge, and that he suffered prejudice by being convicted of an offense that was neither charged nor an LIO of the charged offense.
The Government answers in the affirmative and contends that the appellant does not establish the prejudice required to establish plain error or to prevail on a fatal variance claim.
We will first assess whether the charge satisfies the notice requirement by “makfing] the accused aware of any alternative theory of guilt.” Miller, 67 M.J. at 389 n. 6 (quoting Medina, 66 M.J. at 27)(internal quotation marks omitted).
The specification of the charge alleges that the appellant “did ... by culpable negligence unlawfully kill [MMFR [S]] by failing to request medical assistance ... and concealing [MMFR [S]’s location], whose death was a reasonably foreseeable consequence [of those acts].” Charge Sheet.
Clearly the specification does not allege the elements of prejudice to good order or service discrediting conduct such that it would have put the appellant on notice of negligent homicide as an LIO. Therefore, we conclude that the specification of the charge, standing alone, does not satisfy the Constitutional notice requirement.
This, however, does not end our inquiry, as the Government invokes both actual and constructive notice arguments. The Government asserts this case is distinguishable from Jones as the appellant was tried on a theory that included negligent homicide as an LIO of the charged offense, and where negligent homicide was discussed prior to completion of the Government’s case in chief.
The Government argues that Jones describes a case “where conviction of an offense not charged would not be prejudicial.” Ap-pellee’s Supplemental Brief of 15 Jul 2010 at 8. This bold assertion is attributed to a footnoted comment in Jones, that under the third prong of plain error analysis, conviction of an offense not charged is clearly prejudicial where “the case was not tried on a theory of indecent acts and the military judge did not introduce the subject of indecent acts into the case until after the parties had completed their presentation of the evidence.” Jones, 68 M.J. at 473 n. 11.
Here, without further citation to authority, the Government attempts to distinguish this case from Jones, and argues that the cited footnote supports a conclusion that the absence of surprise renders an otherwise invalid conviction valid. We disagree.
Though the record reflects that the trial defense counsel, trial counsel and military judge believed, based upon the state of the law pre-Jones, that negligent homicide was recognized as an LIO of involuntary manslaughter, the record is silent as to the appellant’s awareness of this matter of law. More importantly, the Government’s actual notice argument is contrary to both the clear import of Jones and fundamental due process principles.
One recent CAAF decision suggests that under very narrow circumstances, constructive notice may remain viable post-Jemes. In United States v. Conliffe, 67 M.J. 127 (C.A.A.F.2009), after finding “fair constructive notice” the CAAF affirmed findings of unlawful entry in violation of Article 134, UCMJ, as an LIO of housebreaking, in violation of Article 130, UCMJ. Id. at 134-35. However, Conliffe, was both narrowly decided and predates Miller and Jones.
First, Conliffe, was a guilty plea case, where the military judge explicitly informed the appellant that unlawful entry was an LIO of housebreaking. Second, Conliffe, admitted during the providence inquiry that as an Army “cadet,” his intended conduct brought discredit upon himself and the Army as an officer and gentleman. The CAAF affirmed the Article 134 LIO citing the “fair construe-[597]*597tíve notice” and that “in military law conduct unbecoming an officer and a gentleman necessarily encompasses service discrediting conduct.” Id. at 134.
We find Jones dispositive, and conclude in this contested case, the charge provided the appellant neither actual nor constructive notice to defend against the charge of negligent homicide.
D. Conclusion
Notwithstanding more than 60 years of precedent, we conclude that the CAAF’s decisions in Miller and Jones constitute binding precedent and are dispositive here. Post-Zones, the statutory elements test is the primary, if not sole, test for determining what constitutes an LIO under Article 79, UCMJ. As negligent homicide includes at least one element not explicitly included in the offense of involuntary manslaughter, it is not an LIO of involuntary manslaughter. In addition, the specification alleged did not otherwise provide the appellant notice that he must defend against the offense of negligent homicide. Accordingly, we conclude the approved findings of guilty to negligent homicide must be set aside.
II. Article 92 Violation
On appeal, the parties agree that the military judge’s special findings reflect that he entered guilty findings for violation of a lawful general order, an offense not before the court. The Government also concedes that the military judge’s failure to enter findings on the proper charge amounts to a finding of not guilty.
The specification of the charge clearly alleges a violation of a lawful order, the elements of which are: (a) issuance of the order; (b) knowledge of the contents of the order; (c) duty to obey the order; and (d) failure to obey the order. MCM, Part IV, ¶ 16b(2).
During pretrial motions, however, see Record at 76-93, the parties began a journey down the road of violation of a lawful general order, the elements of which are: (a) existence of a general order; (b) duty to obey the order; and (c) failure to obey the order. MCM, Part IV, ¶ 16b(l). While the Government produced evidence at trial that is legally sufficient to support a guilty finding for violation of a lawful order, the military judge’s special findings reflect findings of guilty to violation of a lawful general order. The military judge in his special findings also omits a critical element, knowledge of the order, needed to find the appellant guilty of the offense alleged.7 Appellate Exhibit XXXI, ¶ 1 (listing as the proven elements the existence of the order as a lawful general regulation, the duty to obey it, and the failure to obey it).
Because the appellant was found guilty of an offense that he did not commit and with which he was not charged, that finding must be set aside. Cf. United States v. Jones, 2009 WL 1508418, 2009 CCA LEXIS 134, (A.F.Ct.Crim.App. 29 Apr. 2009)(special findings under R.C.M. 918(b) are akin to special findings under Fed.R.Crim.P. 23(c) and on an ultimate issue of guilt or innocence are subject to the same appellate review as a general finding of guilt); United States v. Dilday, 47 C.M.R. 172, 174, 1973 WL 14692 (A.C.M.R.1973).
III. Conclusion
We set aside the guilty findings of negligent homicide and violating an order, dismiss Charges II and IV and the specifications thereunder. We affirm the remaining findings of guilty.
Our action in setting aside two guilty findings in this case constitutes a “significant change in the penalty landscape,” a change so significant that we are unable to reassess the sentence. See United States v. Buber, 62 M.J. 476, 479 (C.A.A.F.2006) (citations omitted). We therefore set aside the approved sentence and order the record returned to an appropriate convening authority who may order a rehearing on sentence only. After the proceedings are completed, the record of trial will be returned to this court for further [598]*598review consistent with Boudreaux v. United States Navy-Marine Corps Court of Military Review, 28 M.J. 181 (C.M.A.1989).
Senior Judges MITCHELL, MAKSYM, and CARBERRY, and Judges PERLAK and BEAL concur.