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Line of Duty/Misconduct Determinations - 14135_369
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Relationship Between Misconduct and Line of Duty - 14135_371
of  24  hours  constitutes  a  material  interference  unless there is evidence to establish the contrary. .  While  confined  under  sentence  of  a  court- martial  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  con- victed. . 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. 13-20

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