Part E, Para 0212
When required:
1. Disease or injury that may result in permanent disability - or that results in physical inability to perform duty for more than 24 hours (as distinguished from hospitalization for evaluation or observation).
PRESUMPTION is always In Line of Duty and Not Misconduct, UNLESS contrary findings are made.
2. Death. LOD determination necessary in order to make decisions concerning SBP.
0215 Some NOT in LOD circumstances:
- As a result of the member’s own misconduct
- While avoiding duty by desertion
- While UA, and such UA materially interfered with performance of required military duties {See 0215.d. - usually more than 24 hours UA)
- While confined under court-martial sentence
- While confined under civil court sentence for felony
0216. What constitutes misconduct:
- More than just inappropriate behavior
- If intentionally incurred
- If result of willful neglect that demonstrates a reckless disregard for the foreseeable and likely consequences.
- Simple or ordinary negligence, or carelessness, standing alone, does NOT constitute misconduct. Even if conduct violates law ... or is engaged in while intoxicated does not ALONE constitute misconduct.
0217. ONLY Possible Findings:
- In line of duty and not due to member’s own misconduct
- Not in line of duty and due to member’s own misconduct
- Also possible: Not in line of duty and not due to member’s own misconduct (example: UA but MVA someone else’s fault)
0218. Mental Responsibility.
May not be held responsible for actions and foreseeable consequences if, as a result of mental defense or disease, member was unable to comprehend nature of such acts or to control his actions.
Presumption: Absent evidence to the contrary, all members are presumed to be mentally responsible for their actions. If a question of mental responsibility is raised by the facts or nature of the incident, presumption ceases, and an investigation must clearly and convincingly establish mental responsibility before an ADVERSE determination can be made.
SUICIDE GESTURE: Self-inflicted injury not prompted by serious suicidal intent; unless a lacks of mental responsibility is otherwise shown, NOT in LOD and due to MISCONDUCT.
SUICIDE ATTEMPT and SUICIDE: Creates strong inference of lack of mental responsibility - so in LOD and not due to own misconduct.
0219. Intoxication and drug abuse (alcohol, drug, inhalation of fumes, gas, or vapor).
In order for intoxication ALONE to be basis for misconduct, clear and convincing evidence must show that member was intoxicated sufficiently to impair rational and full exercise of mental or physical faculties at the time of the injury AND that the impairment was the proximate cause of injury.
Presumption: BAC of .10 or more, member was sufficiently intoxicated to impair rational and full exercise of mental or physical faculties. May be rebutted, but, if not, sufficient to provide clear and convincing evidence of impairment. DOES NOT establish anything about proximate cause of injury.
May also be found to be intoxicated with BAC of <.10, or when BAC not available, but should consider all relevant info on member’s condition
0221. Relationship to Disciplinary Action.
Adverse LOD determination is not punitive; CO may take independent disciplinary action. Also, in LOD determination does NOT preclude separate disciplinary action.
0222. Recording LOD determinations
Whether CI or PI, appropriate entries MUST BE MADE in medical records
Don’t need CI or PI when, in opinion of medical officer, with concurrence of CO, was incurred in LOD and not due to misconduct, and appropriate entries have been made in health records.
Command Investigations. Must convene CI and make LOD determination when:
1. Circumstances suggest a finding of “misconduct” might result; ie.,
a. Use of illegal drugs
b. BAC .10/more
c. Bona fide suicide attempt
2. Circumstances suggest finding of NOT in LOD might result
3. Reasonable chance of permanent disability AND CO considers CI essential to ensure adequate record if made concerning circumstances; or
4. Member is Naval or Marine Corps Reserve
0223. Action by CA. Make LOD determination by taking one of following actions:
1. If CA concludes in LOD and not due to misconduct, endorse IO report with conclusion. Does not matter if IO’s opinion was different.
2. If CA believes NOT in LOD and due to misconduct - must give member (or representative if member mentally incompetent) notice of preliminary determination; has 10 days to respond. JLC will help with processing.
Normally forwarded to GCMCA for final approval.
PART F, PARA 0225 - Death Cases
Normally, NOT TO EXCEED 20 DAYS from date of death
NCIS must be notified of any death occurring on base.
Death investigations are generally releasable to family members - be careful in wording, etc. NOT releasable by Squadron. Contact OSJA.
Don’t delay for autopsy/toxicology reports UNLESS essential for investigation. Can be forwarded by separate endorsement later.
Always go to GCMCA
New Regs on Casualty Reporting - see your admin folks!
Aircraft Accidents:
Mishap Boards: Sole purpose of safety and accident prevention - see OPNAVINST 3750.6
Class A Aircraft accident: Must be determined if Class A as soon as possible, but by 60 days
Definition of Class A: Results in (a) loss of life or permanent total disability that occurs with direct involvement of Naval A/C; (b) damages to A/C, other property, or combination, in excess (currently in 2007) of $1,000,000; or (c) destruction of the A/C.
Loss (or excess) of Government Property:
NCIS/CID investigation required if any indication that the loss was caused by fraud, embezzlement, theft, or other criminal act.
JAGMAN generally not required for losses for which a Financial Liability Investigation of Property Loss (survey) is not mandated by Supply regs.
Primary reference: MCO P4400.150- CONSUMER LEVEL SUPPLY POLICY MANUAL See your Supply Officer !
Security Violations:
For specific requirements respecting investigations concerning loss, compromise, or possible compromise of classified information, normally use CI. Primary reference: SECNAVINST 5510.36, Chap 12 See your Security Manager!
ALLEGATIONS OF DISCRIMINATION OR SEXUAL HARASSMENT:
Governed by OPNAVINST 5354.1 and MCO 5354.1 See your EO representative!