WHAT CONSTITUTES LINE OF DUTY

An injury or disease incurred by naval personnel while on active service is presumed to have been incurred in the line of duty unless there is clear and convincing evidence that it was incurred during one of the following situations: . While absent without leave, and such absence materially interfered with the performance of required military duties. Generally speaking, absence in excess of 24 hours constitutes a material interference unless there is evidence to establish the contrary.

. While confined under sentence of a courtmartial that included an unremitted dishonorable discharge. 

. While confined under sentence of a civil court following conviction of an offense that is defined as a felony by the law of the jurisdiction where convicted. 

. While avoiding duty by deserting the service. 

. As a result of the member's own misconduct, as defined in JAGMAN 0218.

WHAT CONSTITUTES MISCONDUCT

An injury or disease suffered by a member of the naval service is presumed not to be the result of his or her own misconduct unless there is clear and convincing evidence that (1) the injury was intentionally incurred or (2) the inquiry was the result of grossly negligent conduct that demonstrates a reckless disregard for the foreseeable and likely consequences.

Foreseeability is defined as the reasonable anticipation of the danger created by a negligent act committed by a person of ordinary intelligence and prudence. Injury or disease from a course of conduct is foreseeable if, according to ordinary and usual experience, injury or disease is the probable result of that conduct. On the other hand, gross negligence is defined as a conscious and voluntary act, or omission, that is likely to result in grave injury of which the member is aware. It involves a willful, wanton, or reckless disregard for the life, safety, and well-being of self or others. Simple or ordinary negligence or carelessness, standing alone, does not constitute misconduct. The fact that the conduct violated a law, regulation, or order, or was engaged in while intoxicated, does not, of itself, constitute a basis for a determination of misconduct.

Misconduct can never be in the line of duty. Thus, a finding that an injury was the result of the member's own misconduct must be accompanied by a finding that the injury was incurred not in the line of duty.

Accordingly, if a service member is properly performing his or her military duty and is injured as a result of that duty, a misconduct finding would be wrong since no military duty can require a service member to commit an act that would constitute misconduct.

Intoxication is a factor in many of the injuries in which misconduct is found and is often coupled with evidence of recklessness or disorderly conduct. Intoxication may be produced by alcohol, drugs, inhalation of fumes, gas, or vapor. In order for intoxication alone to be the basis for a misconduct finding, there must be a clear showing that the folowing three elements existed:

1. The member's physical or mental faculties were impaired due to intoxication at the time of the injury.

2. The extent of such impairment.

3. The impairment was the proximate cause of the injury.

Proximate cause is conduct that, in a natural and continuous sequence unbroken by any efficient intervening cause, produces injury, and without which the result would have not occurred.

Careful attention must be paid to the facts of each case, especially when the blood alcohol content (BAC) of the injured member is above that constituting a legal state of intoxication in the particular jurisdiction (normally between 0.08 and 0.10 percent BAC). A showing of a blood alcohol level of above .10 mg/dl will, in many cases, he sufficient to satisfy the first two elements; however, additional evidence should be sought in determining whether or not there existed any physical impairment that directly contributed to the injury of the service member. The investigation should include a description of the service member's general appearance, along with information regarding whether the member staggered or otherwise displayed a lack of coordination, was belligerent or incoherent, or displayed slow reflexes or slurred speech.

Inability to perform duty resulting from a disease that is directly attributable to a specific, prior, proximate, and related intemperate use of alcohol or habit-forming drugs is the result of misconduct and therefore, not in the line of duty.

If a member unreasonably refuses to submit to medical, surgical, or dental treatment, any disability that proximately results from such refusal will be deemed to have been incurred as a result of the member's own misconduct.

Any disability resulting from venereal disease is the result of misconduct if the member has not complied with the regulations that require reporting and receiving treatment for such disease.

A member may not be held responsible for his or her acts and their foreseeable consequences if, as the result of a mental defect, disease, or derangement, he or she was unable to comprehend the nature of such acts or to control his or her actions. In the absence of evidence to the contrary, it is presumed that all persons are mentally responsible for their acts.

Because of the strong instinct for self-preservation, an unsuccessful, but bona fide, attempt to kill oneself creates a strong inference of lack of mental responsibility. In all cases of attempted suicide, evidence bearing on the mental condition of the injured person must be obtained. This includes all available evidence as to social background, actions, and moods immediately before the attempt, any troubles that might have motivated the incident, and any pertinent examination or counseling session.

Self-inflicted injury not prompted by a serious intent to die is, at most, a suicide gesture and such injury, unless lack of mental responsibility is otherwise shown, is deemed to be incurred as a result of the member's own misconduct. The mere act alone does not raise a question of mental responsibility because there is no intent to take one's own life; the intent was to achieve some secondary gain.

RELATIONSHIP BETWEEN MISCONDUCT AND LINE OF DUTY

There are only three possible determinations for findings in a line of duty/misconduct determination. They include the following:

1. In line of duty, not due to member's own misconduct.

2. Not in line of duty, not due to member's own misconduct. This determination would occur when misconduct is not involved, but an injury or disease is contracted by a service member that falls within one of four other exceptions to the line of duty presumption (desertion; unauthorized absence (UA); confinement as a result of civilian conviction; or confinement pursuant to sentence by a GCM that included an unremitted dishonorable discharge). Example: A service member has been UA for 8 months and is injured while lawfully _{crossing a street.} The injuries were not the result of negligence.

3. Not in line of duty, due to member's own misconduct. A determination of misconduct always requires a determination of not in the line of duty.

An adverse determination as to misconduct or line of duty is not a punitive measure. Disciplinary action, if warranted, is taken independently of any such determination. A favorable determination as to line of duty/misconduct does not prevent separate disciplinary action, nor is such a finding binding on any issue of guilt or innocence in any disciplinary proceeding. The loss of rights or benefits resulting from an adverse determination may be relevant and, at the request of the accused, admissible as a matter in extenuation and mitigation in a disciplinary proceeding.