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What Constitutes Misconduct - 14135_370
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Investigative Requirements for Specific Incidents
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. 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. 13-21

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