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Investigative Requirements for Specific Incidents
Legalman 1 & C - Navy Lawyer / Jag training guide manuals
Summary - 14135_374
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 l l l l Whether the methods used to cause injury were likely to cause death under the circumstances The  service  member’s  expressed  reasons  for attempting  suicide 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 Whether the service member had threatened suicide  before  the  incident  under  investigation 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 13-23

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