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Relationship Between Misconduct and Line of Duty - 14134_371
Legalman 3 & 2 - Navy Lawyer / Jag training guide manuals
Passenger Misconduct - 14134_373
. 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 13-22

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