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
. 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-
. While avoiding duty by deserting the service.
. As a result of the members 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 members
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 members 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
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 members 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 members own
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.