RECORDING LINE OF DUTY/MISCONDUCT DETERMINATIONS

The inquiry into, and findings concerning, injuries or disease can be recorded in one of three ways.

1. Health and dental record entries. Use health and dental records when the member's physical inability to perform duty exceeds 24 hours and the medical representative and CO agree that the injury or disease is not likely to result in permanent disability and was incurred in the line of duty and not as a result of the member's own misconduct.

2. Form reports. Use an injury report form (NAVJAG Form 5800.15) when all the following conditions are met:

a. In the opinion of the medical representative, as concurred by the CO, the injury or disease was incurred in the line of duty and not as a result of the member's own misconduct.

b. In the opinion of the medical officer, a permanent or permanent partial disability will likely result.

c. A fact-finding body is not required under the JAG Manual and is not otherwise contemplated.

In any case, even if a health and dental record entry would suffice, a form report maybe made to JAG if there appears to be any reason for maintaining a record in that office, Send the form report to JAG via a GCM CA for review. Never use a form report when an injury is self-inflicted, either intentionally or accidentally, since a finding of misconduct often results in either case.

3. A fact-finding body must be convened, and the CO must make findings concerning misconduct and line of duty in any case that: l the injury was incurred under circumstances that suggest a finding of misconduct might result.

. the injury was incurred under circumstances that suggest a finding of not in line of duty might result.

. there is a reasonable chance of permanent disability, and the CO considers the appointment of a fact-finding body the appropriate means to make sure an adequate official record is made concerning the circumstances surrounding the incident. l the injured party is a member of the Naval or Marine Corps Reserve, and the CO determines an investigation to be the appropriate means for recording the circumstances.

ACTION BY REVIEWING AUTHORITIES

The CA must specifically comment on the line of duty/misconduct opinion and take one of the following actions: l The CA must approve, disapprove, or modify the opinion expressed by the fact-finding body by simply stating his or her conclusion in the endorsement. l If, upon review of the report or record, the CA believes the injury or disease was incurred not in line of duty and due to the member's own misconduct, the member may be afforded an opportunity to submit any desired information.

If provided the opportunity to submit additional information, the member will be advised that ( 1 ) no statement against his or her interest relating to the origin, incurrence, or aggravation of any disease or injury sulfered need be made and (2) if the member is suspected of having committed an offense, he or she will be advised of his or her Article 31, UCMJ, rights. If the member elects not to provide further information, that election will be set forth in the reviewing authority's endorsement.

The CA should make sure appropriate time lost, enlistment extension, and similar entries arc made in service and/or medical records before sending the report of investigation of an injury concluded to have been incurred not in the line of duty. In the event the not in the line of duty opinion is later disapproved by the OEGCMJ, corrective entries can be made at that time.

FORWARDING

Unless the CA is empowered to convene GCMs, send the record or report to an OEGCMJ. This officer may take any action on the report that could have been _{taken by the CA.} With respect to conclusions concerning misconduct and line of duty, he or she will indicate his or her approval, disapproval, or modification of such conclusion unless he or she returns the record for further inquiry. A copy of this action will be sent to the CO of the member concerned so that appropriate entries may be made in the service and medical records. Reviewing authorities subsequent to the OEGCMJ need neither comment nor record approval or disapproval of the prior actions concerning line of duty and misconduct.

INVESTIGATIVE REQUIREMENTS FOR SPECIFIC INCIDENTS

The IO should be aware of particular problem areas in line of duty/misconduct investigations. Examples of situations commonly encountered are listed in the following paragraphs, along with a listing of various facts that should be included in investigative reports. The examples are not intended to be comprehensive, nor do the listed factors purport to cover every fact situation that may arise.

Speeding

It is impossible to state categorically when excessive speed becomes gross negligence and requires a finding of misconduct. The investigative report should contain information about the type and condition of the road; the number and width of the lanes; the type of area (densely populated or rural); any hills or curves that played a part in the accident; the traffic conditions; the time of day and weather conditions; the posted speed limit in the area; the mechanical condition of the car (particularly the brakes and tires); and the prior driving experience of the member. The speed of the vehicle is also important; however, estimates of speed based solely upon physical evidence at the scene of the crash, such as skid marks and damage to the vehicle, are somewhat conjectural unless corroborated by other evidence. Therefore, attempts should be made to secure estimates of speed from witnesses, passengers, and drivers. In this way, the postaccident estimates of the police may be corroborated.

Falling Asleep at the Wheel

Fulling asleep at the wheel is one of the most common causes of accidents, but is one of the most difficult situations in which to establish misconduct. The act of falling asleep, in itself, does not constitute gross negligence; however, the act of driving while in a condition of such extreme fatigue or drowsiness that the driver must have been aware of the danger of falling asleep at the wheel may amount to such a reckless disregard of the consequences as to warrant a finding of gross negligence and misconduct. Before a finding of misconduct can be made, there must be clear and convincing evidence showing that the service member experienced premonitory symptoms of drowsiness that should have put the driver on notice of the imminent danger of falling asleep. This information should include how long the service member had been driving and how many miles the member had driven before the accident; the amount of sleep the member had before starting the trip; the member's activities for the 24 hours before the injury; whether any momentary periods of drowsiness were experienced before finally falling asleep; and any evidence of drinking or intoxication.

Passenger Misconduct

If a passenger knows or should know that the driver is unlikely to drive safely because of negligence, lack of sleep, recklessness, or intoxication, the passenger is guilt y of misconduct upon voluntarily exposing himself or herself to the danger. The investigation should contain information showing whether the service member had an opportunity to leave the vehicle after the driver's condition became apparent; whether the driver and passenger had been drinking together and how much each had to drink; and what action, if any, was taken by the passenger to have the driver drive more carefully. Also determine the operator's driving experience; any signs of intoxication; whether the passenger noticed the driver was tired or exhibited any other symptoms; whether the passenger took any action to have the driver rest or to personally assume the driving responsibilities.

Disorderly Conduct and Fighting

Injuries incurred by a service member while voluntarily and wrongfully engaged in a fight or similar encounter, whether or not weapons were involved, are due to misconduct where they might reasonably have been expected to result directly from the fight and the service member is at least equally culpable with the adversary in starting or continuing the affair.

Not all injuries resulting from fighting necessarily must be determined to have resulted from the member's misconduct. For example, if an adversary employs unexpectedly violent methods or means, such as a dangerous weapon, a conclusion that the resulting injuries were not due to the member's own misconduct could be appropriate.

In investigating such incidents, you should determine (1) who instigated or provoked the fight and/or struck the first blow; (2) any history of prior altercations between the participants; (3) whether either participant was armed; (4) whether either participant attempted to terminate the fight; (5) the relative size and capabilities of the participants; and (6) the part that drinking, if any, played in the altercation. If there are inconsistent statements from witnesses about the incident, the IO should indicate in the report which witnesses the officer chose to believe in making the findings of fact and opinions.

Intentionally Self-Inflicted Injuries

Include any medical reports and opinions in the investigative report when the investigation concerns an intentionally self-inflicted injury. In these cases, the IO should primarily look for evidence, or lack thereof, of a bona fide suicide intent. The investigative report should contain information about the following:

l Whether the methods used to cause injury were likely to cause death under the circumstances

l The service member's expressed reasons for attempting suicide

l Whether the service member took action to avoid being found before the injury as opposed to being certain he or she would be discovered and treated quickly

l Whether the service member had threatened suicide before the incident under investigation

l Statements of shipmates and friends about the member's apparent state of mind on the date of the act

Accidentally Self-Inflicted Injuries: Gunshot Wounds

A form report should not be used when an injury results from an accidental self-inflicted gunshot wound because of the strict, high standard of care required in the use of firearms or other dangerous weapons. In cases of this kind, mere failure to take proper precautions to prevent a casualty normally constitutes simple negligence or carelessness and, therefore, does not justify a finding of misconduct. However, in the event the record clearly and convincingly shows that the service member has displayed a lack of care that amounts to gross negligence, taking into account the higher standard of care required of persons using and handling dangerous weapons, a finding of misconduct _{is appropriate.} The IO's report should include information about the following:

l Whether the subject member was familiar with guns in general and with the gun in question

l Whether the member was aware of the weapon's safety features

l Whether there were any defects in the weapon and whether the member knew of such defects

l Whether the member knew the gun was loaded or had checked the chamber for its possible loaded condition

l Whether the member had cocked the weapon

l How the weapon was positioned in relation to the service member's body and why it was placed in that position

l The possible cause of the weapon's discharge

l The mental attitude of the handler, including any alcohol or drug involvement

l Any intervening factors

SUMMARY

Your knowledge of the proper procedures involved with the conduct and preparation of the various types of JAGMAN investigations is an important aspect of your duties as a senior LN. Additional information concerning these investigations can be found in chapter II of the Manual of the Judge Advocate General and JAGINST 5890.1. Whenever you are involved with working on a JAGMAN investigation, you should take the time to review the applicable sections of the JAGMAN and JAGINST 5890.1 to make sure all procedures and any special requirements are followed.