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Page Title: Misconduct
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determination. In fact, a favorable finding does not always mean that disciplinary action will not be taken. MISCONDUCT Ordinary   negligence   or   carelessness   is   not misconduct. Even when an act violates law, regulation or order, or is engaged in while intoxicated, the act in question does not necessarily constitute a basis for a misconduct   determination.   Misconduct   means intentionally  wrongful  conduct  or  gross  negligence.  To support  a  fact-finding  body’s  opinion  of  misconduct,  the wrongful  conduct  must  be  found  to  have  been  a proximate cause of the injury or disease; that is, the misconduct  must  have  directly  caused  injury  or  disease that otherwise would not have occurred. Furthermore, the wrongful conduct must be such that it could have been  reasonably  foreseen  that  injury  or  disease  might result. If the injury or disease was caused by something not reasonably foreseeable at the time the act of apparent misconduct   was   committed,   the   act   may   not   be considered as a proximate cause of the injury or disease. Conjecture,  guesswork  or  inference  is  not  enough for a finding of misconduct. Until found otherwise, it is always presumed that injury or disease is not the result of  misconduct.  There  must  be  clear  and  convincing evidence  that  the  injury  or  disease  is  the  proximate  result of  the  person’s  misconduct. Thus, in summary, injury or disease, in order to support  an  opinion  of  misconduct,  must  have  the following  characteristics: LINE It must be intentionally incurred by wrongful conduct or result from gross negligence. It must be the proximate result of the member’s action. It must have been reasonably foreseeable as the result of the act. OF DUTY Whether or not misconduct is involved becomes an integral part of the line of duty determination. For instance, if it is found that misconduct is involved, the act cannot have been committed in the line of duty. Conversely, if the investigating body gives as its opinion that a particular act was done in the line of the duty, it may not at the same time say that misconduct was involved. An act maybe done not in the line of duty, but not necessarily as a result of misconduct. If a person is innocently  injured  in  a  traffic  accident  ashore,  for instance, after having been on unauthorized absence for several days, the finding would probably be not in line of duty (since he or she was on unauthorized absence that exceeded 24 hours), but not due to own misconduct (since the injury was certainly not intentional or through gross  negligence). The determination is always not in line of duty if the injury or disease is found to have been incurred under the  following  circumstances: . As a result of misconduct. . While avoiding duty by deserting the service; while absent without leave and such absence materially interfered with the performance of required military duties; there is a rebuttable presumption for or against such  material  interference  dependent  on  whether  the unauthorized  absence  exceeded  24  hours  or  not, respectively.    NOTE: The  element  of  material interference  is  inapplicable  in  regard  to  physical disability separation and retirement benefits so that a disability incurred during desertion or unauthorized absence  of  any  duration  will  result  in  ineligibility  for those  benefits. .   While   confined   under   sentence   of   general court-martial involving an unremitted dishonorable discharge. .  While  confined  under  sentence  of  civil  court following conviction of a felony. RELATIONSHIP  BETWEEN  MISCONDUCT AND LINE OF DUTY Misconduct can never be in line of duty. Hence, a finding or determination that an injury was incurred as a  result  of  the  member’s  own  misconduct  must  be accompanied  by  a  finding  or  determination  that member’s injury was incurred not in line of duty. It is permissible, however, to find that an injury was incurred not as a result of misconduct and not in line of  duty. As an  example,  a  member  who  is  absent  without  authority may be injured by a felonious assault or struck by a vehicle driven by a drunken driver. Obviously, the injury was incurred through no fault of the member, but if the absence  materially  interfered  with  the  performance  of his or her required military duties, a finding of not in line of duty must result. A fact-finding body can arrive at only one of the possible  combinations  of  findings  as  follows: 11-11

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