NAVAL JUSTICE SCHOOL

1. NAVAL JUSTICE SCHOOL ADMINISTRATIVE INVESTIGATIONS (JAGMAN INVESTIGATIONS)

2. OBJECTIVES

3. REFERENCES JAGINST 5800.7 (series) Manual of the Judge Advocate General Chapter II

4. RESOURCE DOCUMENTS Naval Justice School JAGMAN Investigation Handbook SECNAVINST 5510.36 classified material SECNAVINST 5215.5 disposal of naval records

5. PRIMARY FUNCTIONS Gather and preserve information Improve efficiency and administration reevaluate practices redesign or improve material modify or adopt regulations, SOP, and/or instructions reply to inquiries

6. PRIMARY FUNCTIONS Disposition of claims Assist in making disciplinary/administrative decisions concerning personnel

7. TYPES

8. WHEN TO CONVENE Any situation in which CO wants more information Mandatory when incident involves: certain death cases injury/disease aircraft mishap claims security violations

9. TIP In some instances , other regulations may require investigations when JAGMAN Chapter II does not. When the only basis for conducting the investigation is disciplinary action, a preliminary inquiry under R.C.M. 303, or a pretrial investigation under under R.C.M. 405 and Article 32, UCMJ should be conducted without a separate investigation. In addition to investigations governed by JAGMAN, Chapter II, investigations may be required by other regulations. These investigations have other purposes and both may be appropriate.

10. PRELIMINARY INQUIRY Conducted for all incidents quick, informal tool determine if further investigation is warranted should be completed w/in 3 days no need to convene in writing CA can appoint IO or conduct him/herself report need not be in written forwarded to CA upon completion

11. CA OPTIONS CA need take no further action if: would serve no useful purpose little interest outside immediate command investigated under other procedure No need to document decision in writing recommended May convene command investigation May request GCMCA to convene board/court of inquiry

12. REPORTING REQUIREMENTS When required, report decision to ISIC ISIC will determine what incidents will be reported stand alone report not required may be relayed in contents of existing reporting systems ISIC may concur or order different course of action

13. TIP The determination of which course of action to take is a matter within the CA's discretion. Generally, the primary manner in which the investigation will be used will determine which option should be exercised

14. TIP The immediate superior in the chain of command may desire all decisions regarding preliminary inquiries be reported or may indicate that only certain incidents be reported. When required to report the decisions regarding preliminary inquiries, a separate stand-alone report is not required and the decision may be reported in other required reports such as OPREPS and SITREPS. Superiors in the chain of command may direct that an option be reconsidered or may order a different course of action.

15. COMMAND INVESTIGATIONS Most common type Functions to search out, develop, assemble, analyze and record all available information relevant to incident under investigation Appropriate for incidents involving aircraft mishaps, explosions, ship stranding, flooding, etc.

16. CONVENING ORDER May direct the IO to seek assistance of a judge advocate May direct IO to provide opinions or recommendations in addition to findings of fact Shall specify when the report is due May designate parties Should identify potential witnesses and sources of information Specify format in which the report will be submitted

17. COMMAND INVESTIGATIONS Convened in writing by anyone with Article 15 authority Conducted by one or more persons Collects evidence by personal interviews, telephone inquiries, or written correspondence Documented in writing in the manner prescribed by the CA Does not involve hearings May contain sworn statements signed by witnesses

18. TIME LIMITATIONS

19. CA OPTIONS Retain as internal report Return to IO for corrections/further information Modify or add to findings of fact, opinions and recommendations Approve or disapprove recommendations

20. REVIEW GCMCA superior to CA must review all investigations which have been forwarded Considered final when the last reviewing authority determines that further endorsement is not necessary becomes release authority under FOIA/Privacy Act

21. TIP If a commander believes it is impractical or inappropriate for the command to investigate, another command may be requested to conduct the investigation pending deployment, geographical separation, military exigencies Such requests should contain all available information When more than one command is involved, a single investigation is conducted if appropriate CA cannot be determined, refer to area coordinator or common superior if investigation involves performance of duty of one of the officers in command, investigation will be convened by area coordinator or common superior

22. TIP Requests and authorizations for extensions need not be in writing but must be mentioned in the preliminary statement

23. TIP The CA may determine that the investigation is of no importance to anyone outside the command. Unless otherwise directed by a superior, the CA may retain the original investigation as an internal report. If the CA intends to forward the report of investigation, upon receipt he shall review the investigation and endorse it or return it to the IO If convening order did not require opinions and recommendations, CA's endorsement shall make opinions and recommendations as appropriate and shall indicate what corrective action is warranted or has been taken CA endorsement shall state where any original evidence is preserved and provide name and phone number of POC CA action should be completed w/in 20 days of receiving the report Maintain copy for 2 years

24. TIP Subject matter of investigation will determine routing for additional review Superior commanders may provide direction concerning review and forwarding Intermediate reviewing authorities should complete review and endorse w/in 30 days Investigations into loss, compromise, or possible compromise of classified material should be routed IAW SECNAVINST 5510.36 Copies of the report should be made available to all superior commanders who have a direct interest Retained for 2 years after 2 years, stored IAW SECNAVINST 5215.2

25. LITIGATION REPORT INVESTIGATIONS Primary purpose is to prepare to defend legal interests of DON and U.S. claims for/against DON/USN Convened only after consultation with a Judge Advocate Conducted under direct supervision of a Judge Advocate Must be protected from disclosure to anyone w/out official need to know Must be forwarded to OJAG

26. LITIGATION REPORT INVESTIGATIONS Cannot be used to investigate major incidents May not designate parties Does not involve hearings

27. CONVENING ORDER In writing Identify supervising Judge Advocate Will not request opinions and recommendations requested or written by supervising Judge Advocate Specify due date

28. LITIGATION REPORT INVESTIGATIONS Convened in writing by anyone with Article 15 authority Conducted by one or more persons under supervision of Judge Advocate Collects evidence by personal interviews, telephone inquiries, or written correspondence Documented in writing in the manner prescribed by the CA Shall not contain statements signed by witnesses Marked "FOR OFFICIAL USE ONLY: LITIGATION/ATTORNEY WORK PRODUCT"

29. CA ACTION Endorse the report in writing or return it to the cognizant Judge Advocate for further inquiry. Comment may be provided on aspects of the report that bear on the administration or management of the command. Shall indicate whether corrective action is warranted and has been or will be taken.

30. CA ACTION Shall not normally approve or disapprove the findings of fact. May return the investigation to the cognizant Judge Advocate for further inquiry. Endorsement shall state where the original evidence is and the POC Shall be completed within 20 days of receiving the report Shall be marked: "FOR OFFICIAL USE ONLY: LITIGATION/ATTORNEY WORK PRODUCT"

31. REVIEW SJAs through whom the investigation is routed shall review for accuracy and thoroughness Not required to comment on report OEGCMJ should take action as warranted Report should be forwarded to JAG within 30 days Formal forwarding endorsement not required

32. TIP A command should contact a judge advocate at the earliest opportunity prior to conducting a litigation-report investigation. Materials gathered during the investigation become evidence. When conducted in anticipation of litigation but not conducted under the supervision of an attorney, they cannot legally be protected from adverse parties.

33. TIP A major incident is defined as an extraordinary incident occurring during the course of official duties resulting in multiple deaths, substantial property loss, or substantial harm to the environment where circumstances suggest a significant departure from the expected level of professionalism, leadership, judgment, communication, state of material readiness, or other relevant standard. Substantial property loss or other harm is that which greatly exceeds what is normally encountered in the course of day-to-day operations. Major incidents are often accompanied by national public and press interest and significant congressional attention. They may also have the potential of undermining public confidence in the naval service.

34. TIP The order should state specifically that: "This investigation is being convened and your report is being prepared in contemplation of litigation and for the express purpose of assisting attorneys representing the interests of the United States in this matter." The order should identify the supervising Judge Advocate by name. Should be completed within 30 days of the date of the convening order.

35. TIP The CA should retain a copy and forward the original to JAG Code 33 via SJA of OEGCMJ All copies must be marked"FOR OFFICIAL USE ONLY: LITIGATION/ATTORNEY WORK PRODUCT" The CA should provide superiors in the chain-of-command and other commands with a direct official interest the results of the investigation Should not disseminate the report without consulting with a Judge Advocate See JAGMAN Chapter II, Page 2-14 for additional routing guidance

36. BOARD OF INQUIRY Uses hearing procedure Investigates major incidents or significant events Convened in writing by OEGCMJ One or more commissioned officers Legal counsel appointed May appoint advisors Does not have subpoena power can order naval personnel to appear

37. CONVENING ORDER Convened in writing by OEGCMJ Should direct testimony be taken under oath Should direct open proceedings to be recorded verbatim Designates parties May authorize the board to designate parties

38. COURT OF INQUIRY Uses hearing procedure Investigates major incidents or significant events Convened in writing by OEGCMJ At least three commissioned officers Legal counsel appointed May appoint advisors Takes all testimony under oath and all open proceedings are recorded verbatim Has subpoena power and power to order military personnel to appear

39. ADVISORS The CA may appoint full-time Federal personnel to participate in proceedings and advise the members Subject to challenge May suggest recommended course of action

40. REPSONSIBILITIES OEGCMJ over command most involved will take cognizance over the case as convening authority When more than one command is involved, the common superior will act as convening authority and only one investigation will be conducted

41. CONDUCT OF INQUIRY Other than members, counsel, advisors and administrative support personnel, as a general rule, only parties may participate in proceedings CA or president may permit participation by commands or organizations that has an interest in the inquiry limitations on conditions of participation should be specified in advance

42. TIME LIMITATIONS The CA shall prescribe time limitations according to the complexity and gravity of the incident under investigation May grant extensions requests and authorizations for extensions must be included in the report as enclosures

43. CA ACTION Shall review and either endorse the report in writing or return it for further investigation May approve, disapprove, modify or add to findings of fact, opinions and recommendations Indicate if corrective action is warranted or has been taken State where evidence is preserved and provide POC If not Echelon II, retain a copy and forward the original, via chain of command to appropriate Echelon II Should be completed w/in 30 days of receiving report

44. REVIEW Intermediate reviewers shall comment, in written endorsement, on the report and state concurrence or disagreement with findings of fact, opinions and recommendations and shall state what action is considered warranted or has been taken Reports should be endorsed and forwarded w/in 30 days of receipt

45. TIP See JAGINST 5830.1 series for the requirements for convening orders for courts and boards of inquiry

46. TIP Advisors may be selected because of their subject-matter expertise, background, training, or experience. May be present at all sessions. Persons with technical expertise may be appointed for either full participation or the limited purpose of utilizing their special expertise. If appointed for a limited purpose, they need not participate in any aspect of the inquiry not concerning their expertise. The investigative report must clarify limited participation.

47. TIP See JAGINST 5830.1 series for information on how boards and courts of inquiry are conducted

48. TIP See JAGINST 5800.7 series for further information on the safekeeping of evidence

49. TIP If being used as pretrial investigation under Article 32, the original report may be retained for inclusion in the record of trial A complete certified copy shall be forwarded to the Echelon II commander

50. INVESTIGATORS With the exception of the Preliminary Inquiry, the investigator is detailed in writing The appointing order should detail scope, provide explicit instructions, focus attention on checklists and warnings, detail available technical and clerical support, and set time limits

51. SELECTION Seniority principle should be senior to individual(s) under investigation Factors to consider: age education training and experience length of service temperament

52. RESPONSIBILITY Read applicable instructions and checklists Commence ASAP Gather information from: documents/logs/records photos/videos/sketches physical evidence witnesses observations

53. TANGIBLE EVIDENCE Include item or photograph, description, chart, map, or suitable reproduction in the investigative report

54. DOCUMENTARY EVIDENCE Includes records, logs, documents, letters, diaries, reports, and statements Should indicate their source and specify any special restrictions on disclosure to third parties Obtain originals or authenticated true copies when possible

55. PHOTOGRAPHS Reverse side should contain: date taken brief description of area or location full name and rank of photographer full names and addresses of persons present when the photographs were taken

56. PHOTOGRAPHS Photographer should be asked to provide details surrounding the taking of the photographs such as type of camera, distance from object, etc

57. PRESERVATION OF AIRCRAFT WRECKAGE Requests for preservation of aircraft wreckage will be forwarded to NAVAIR (Air 412) Original requests with any attachments should be forwarded Copies of the forwarding letter and the original request with all attachments shall be forwarded separately to JAG Codes 34 and 35

58. WITNESSES NOT SUSPECTED OF MISCONDUCT COMMAND INVESTIGATIONS Witness statements are normally taken through informal interviews may be required to make statement under oath oral statements should be reduced to writing and signed by the witness or certified as an accurate summary by the investigator

59. WITNESSES NOT SUSPECTED OF MISCONDUCT LITIGATION REPORT INVESTIGATIONS In most cases, will not be asked to make a written statement or to sign a statement prepared by the investigating officer Investigator should summarize the results of interview and authenticate the summary

60. WITNESSES NOT SUSPECTED OF MISCONDUCT BOARDS/COURTS OF INQUIRY Generally, all testimony is taken under oath in open session

61. WITNESSES SUSPECTED OF MISCONDUCT Should be interviewed last Article 31(b), UCMJ, applies Civilian personnel offices should be consulted about applicable collective bargaining requirements before interviewing civilian witnesses suspected of misconduct

62. WARNINGS Article 31(b) for military suspects Privacy Act when requesting: personal information information unrelated to official duties JAGMAN 0221 warning when requesting information relating to injury or disease

63. TIP Completion of the investigation takes precedence over all other duties Military Rules of Evidence do not apply

64. TIP If an investigator or board member observes an item and gains relevant sense impressions, (noise, smell, or any other impression not adequately portrayed by a photograph, chart, map, or other representation, the impression should be recorded and included as an enclosure to the report.

65. TIP Completion and forwarding of investigations should not be delayed to await final reports, originals, or similar documents unless their inclusion is is absolutely essential to the completion of the investigation. Unavailability of documents should be noted in the report and the report should be completed and forwarded. Documents subsequently obtained shall be forwarded by separate cover via the review chain, with appropriate reference to the report.

66. TIP Similar information should should be on a label affixed to any videotape included in the investigation When including graphic photographs which may shock the sensitivities to relatives or others viewing them, place them in a separate envelope marked "CAUTION, CONTAINS GRAPHIC PHOTOGRAPHS. VIEWER DISCRETION WARRANTED.'

67. TIP Probing questions to establish who, what, when, where, and why should be pursued Investigator may assist witness in preparing a statement Care should be taken to ensure any summary of an oral statement is phrased in the actual language of the witness

68. TIP If the investigator believes a witness should sign a statement, they should first contact the cognizant judge advocate I. E. a witness whose interests are clearly adverse to the government's is willing to sign a statement that is clearly beneficial to the government, then the cognizant judge advocate should direct the witness to sign the investigating officer to obtain a signed statement if possible such statement should be taken under oath

69. TIP For Boards of Inquiry, convening order will specify whether testimony will be under oath and recorded/transcribed verbatim For Courts of Inquiry, all testimony is taken under oath and recorded/transcribed verbatim

70. TIP Personal information is information about an individual that is intimate or private to the individual, as distinguished from information related solely to the individual's official functions or public life. It includes information relating to financial, family, social, and recreational affairs; medical, educational, employment, or criminal activity; and information that identifies, describes, or affords a basis for inferring personal characteristics. It ordinarily does not include information associated with actions or inactions that are directly related to the duties of Federal employment or military assignment.

71. INVESTIGATIVE REPORT Investigative reports shall be submitted in the manner prescribed by the CA. Normally, a letter report will be specified

72. INVESTIGATIVE REPORT Four Parts

73. PRELIMINARY STATEMENT Informs CA /reviewing authorities that all reasonably available evidence was collected or is forthcoming and that each directive by the CA has been met Sets forth nature of investigation Details difficulties encountered, extensions, limited participation by advisors, and any other information necessary for complete understanding of the case

74. FINDINGS OF FACT Must be as specific as possible as to times, dates, places, persons, and events Each fact shall be a separate finding and will cite the enclosure supporting the finding

75. OPINIONS Reasonable evaluations, inferences or conclusions based on findings of fact Must cite the finding of fact upon which it is based

76. RECOMMENDATIONS Depend on nature of facts and opinions Shall not be offered unless directed by the CA/JA May be general or limited subject areas Will not prefer charges or notify an accused of recommended charges

77. TIP The preliminary statement in a litigation report investigation will expressly state that the report was prepared under the supervision of a judge advocate in contemplation of litigation for/against the United States Preliminary statement does not eliminate the need for findings of fact

78. TIP In a litigation report investigation, opinions will not be expressed unless requested by the CA or cognizant judge advocate

79. TIP Preferral of charges in an investigation will start the speedy trial clock For recommendations pertaining to the issuance of punitive and non-punitive letters, see JAGMAN 0218

80. AUTHENTICATION Command Investigations & Courts/Boards of Inquiry Signed by IO or senior member dissents may be written if written - attach to report Litigation Report Investigations Signed by IO and supervising judge advocate

81. TIP If the IO and JA cannot agree on a particular point, only the JA shall sign the report The IO may, but is not required to, separately document the basis for any disagreement

82. ENCLOSURES Enclosure 1 Appointing order Subsequent Enclosures Evidence developed by investigation listed in order in which they appear in investigation

83. TIP Each piece of evidence should be listed as a separate enclosure The narrative summary portion, referred to as the Report of Investigation (ROI) shall not be included in administrative investigations Enclosures to NCIS investigations may be included do not include polygraph reports or their results

84. DISCIPLINARY ACTION Whenever punitive or non-punitive action is contemplated or taken, the action shall be noted in the endorsement to the investigation I.E. Punitive action is not warranted; however, appropriate corrective corrective measures were taken in the case of ENS Smith

85. DISCIPLINARY ACTION Punitive Letters letters or copies of recommended drafts will be attached as enclosures Non-Punitive Letters do not mention in endorsement and do not attach letters or copies of recommended drafts as enclosures forwarded separately to appropriate commander for issuance

86. DISCIPLINARY ACTION Unless an individual was afforded the rights of a party, NJP may not be imposed exclusively upon the results of an administrative investigation, nor may the report be used in lieu of an Article 32 pretrial investigation.

87. ROUTING One copy for each intermediate reviewer is forwarded with the original investigation In death cases, ultimate reviewer will receive original and two copies If investigation was done based on request from another command, forward one copy to command that requested investigation Advance copy of investigations involving injury, death, or damage to government property will be forwarded to Navy Safety Center, Norfolk and local NLSO if damage was to aircraft, advance copy only forwarded upon request from Safety Center

88. ROUTING Two copies of investigations involving medical malpractice should be forwarded to Chief, Bureau of Medicine and Surgery

89. ROUTING Commands providing subsequent review of investigations in which advance copies were provided to the Safety Center, Local NLSO, or BUMED, must also forward advance copies of their endorsements

90. ROUTING Commands receiving "courtesy copies" may provide all or some of the commands concerned with their comments or recommendations These comments do not become part of the investigation reviewing authority may incorporate them

91. RELEASE RELEASE OF INVESTIGATION REPORTS OUTSIDE DON IS GOVERNED BY SECNAVINST 5720.4 , SECNAVINST 5211.5 AND JAGMAN CHAPTER V

92. RELEASE Chief of Naval Operations is release authority for investigations involving actual or possible compromise of classified material The Judge Advocate General of the Navy is the release authority for all Litigation Report Investigations The OEGCMJ is the release authority for all other command investigations The cognizant Echelon II commander is the release authority for all boards/courts of inquiry

93. TIP No investigative report may be released until the investigation is final In the case of aircraft mishaps, only SECNAV may release unclassified tapes, scientific reports, and other factual information relating to the incident prior to finalization of the investigation Requests for release of of evidence in aircraft mishaps should be expeditiously forwarded via chain of command to the Judge Advocate General to the Secretary of the Navy

94. LINE OF DUTY/MISCONDUCT Effect of Determination lost time changes in longevity, severance, and retirement pay multipliers forfeitures of pay disability/severance pay benefits administered by Department of Veterans Affairs (VA) Reserve incapacitation pay and medical care entitlement Survivor Benefit Payments

95. LINE OF DUTY/MISCONDUCT Determination always presumed to be "in the line of duty" except when result of misconduct as determined under current regulations incurred while avoiding duty by deserting incurred while in UA status and UA materially interfered with performance of required military duties incurred while confined under court sentence that included unremitted dishonorable discharge incurred while confined under the sentence of a civil court for a felony offense

96. LINE OF DUTY/MISCONDUCT Misconduct more than just inappropriate behavior intentionally incurred or result of willful neglect which demonstrates a reckless disregard for the foreseeable and likely consequences ordinary negligence or carelessness, standing alone, does not constitute misconduct conduct violating law, regulation, or order, or is engaged in while intoxicated, does not, of itself, constitute basis for misconduct determination

97. LINE OF DUTY/MISCONDUCT Findings In the line of duty and not due to own misconduct Not in the line of duty and not due to own misconduct Not in the line of duty and due to own misconduct

98. LINE OF DUTY/MISCONDUCT Mental Responsibility not responsible for particular actions and their foreseeable consequences, if the member was unable to comprehend the nature of such acts or control actions as a result of a mental defect

99. LINE OF DUTY/MISCONDUCT Intoxication to be basis of misconduct determination, it must be shown that the member was intoxicated sufficiently to impair the rational and full exercise of mental and physical faculties at the time of the injury and the impairment was the proximate cause of the injury

100. LINE OF DUTY/MISCONDUCT Alcohol/Drug Induced Disease inability to perform duties resulting from a disease directly attributed to a specific, prior, proximate and related intemperate use of alcohol or habit forming drugs is misconduct time spent in evaluating habituation without specific inability to perform duty will not be charged as time lost due to misconduct

101. LINE OF DUTY/MISCONDUCT Alcohol/Drug Induced Disease inability to perform duties resulting from a disease directly attributed to a specific, prior, proximate and related intemperate use of alcohol or habit forming drugs is misconduct time spent in evaluating habituation without specific inability to perform duty will not be charged as time lost due to misconduct

102. LINE OF DUTY/MISCONDUCT Refusal of Medical/Dental Treatment unreasonably refuses to submit to medical, surgical or dental treatment, any disability that proximately results from such refusal shall be deemed to be incurred due to the member's misconduct See Chapter 18, Manual of the Medical Department

103. LINE OF DUTY/MISCONDUCT Relationship to Disciplinary Action Adverse determination is not a punitive measure when warranted, may take independent disciplinary action Favorable determination does not preclude separate disciplinary action favorable determination is not relevant or binding as to the guilt or innocence of member in separate disciplinary action

104. LINE OF DUTY/MISCONDUCT Recording Determination each injury or disease requiring LOD/misconduct determination must be the subject of a preliminary inquiry command investigation need not be convened and report need not be forwarded when, in the opinion of the medical officer, with the concurrence of the CO, injury or disease was incurred in the line of duty and not due to misconduct appropriate entries must be made in the health/dental record to record such findings

105. LINE OF DUTY/MISCONDUCT Command Investigation a command investigation must be convened when the preliminary inquiry shows injury was incurred while using illegal drugs while BAC was .10 or higher as a result of a bona fide suicide attempt under circumstances which suggest an adverse finding

106. LINE OF DUTY/MISCONDUCT Command Investigation a command investigation must be convened when the preliminary inquiry shows there is a chance of permanent disability CO considers investigation essential to ensure adequate official record injured member is a reservist CO considers investigation essential to ensure adequate record See SECNAVINST 1770.3 for additional information on Reserve Component Incapacitation Benefits in relation to LOD/misconduct

107. LINE OF DUTY/MISCONDUCT Action by Convening Authority determines injury/disease incurred LOD/not due to misconduct, conclusion must be expressed in endorsement this action may be taken regardless of whether it differs from or concurs with the opinion expressed by the investigating officer

108. LINE OF DUTY/MISCONDUCT Action by Convening Authority determines injury/disease incurred not LOD or due to misconduct, must afford the member notice of the preliminary determination and 10 calendar days to submit any desired information for consideration additional time may be granted by the CA

109. LINE OF DUTY/MISCONDUCT Action by OEGCMJ may take any action that can be taken by CA must indicate approval/disapproval or modification of determination must forward copy of endorsement to CA so that appropriate medical/dental record entries are made

110. LINE OF DUTY/MISCONDUCT Follow-Up Actions After review/approval of LOD/misconduct determination by GCMCA, CO of member must ensure appropriate medical/dental records are made to include GCMCA action GCMCA action will be made an enclosure to all LOD health record entries

111. LINE OF DUTY/MISCONDUCT Follow-Up Actions Extension of Enlistment unable to perform duties for more than 24 hours because of intemperate use of drugs or alcohol or because injury/disease incurred as a result of misconduct, lost time will be charged and EAOS will be adjusted requires Page 6 service record entry

112. LINE OF DUTY/MISCONDUCT Follow-Up Actions Longevity/Retirement Multiplier unable to perform duties for more than 24 hours because of intemperate use of drugs or alcohol or because injury/disease incurred as a result of misconduct, is not entitled to include such periods in computing "creditable service" Paragraph 10104 Department of Defense Military Pay and Allowances Entitlement Manual (DODPM)

113. LINE OF DUTY/MISCONDUCT Follow-Up Actions Forfeiture of Pay unable to perform duties for more than 24 hours because of a disease that is directly caused by and immediately follows intemperate use of alcohol or habit-forming drugs is not entitled to pay for that period of absence if pay is forfeited for more than 1 month, member is entitled to $5.00 for personal expenses for each month that pay is forfeited pay is not forfeited for absences from duty caused by injuries pay is not forfeited for diseases not directly caused by and immediately following intemperate use of alcohol or habit-forming drugs Paragraph 10315c DODPM

114. LINE OF DUTY/MISCONDUCT Follow-Up Actions Disability/Retirement Pay only paid when member's injuries meet requirements established be applicable statutes not be a result of intentional misconduct or willful neglect not incurred during a period of Physical Evaluation Board is bound by LOD/misconduct determinations

115. LINE OF DUTY/MISCONDUCT Follow-Up Actions VA Benefits makes own determination wrt LOD/misconduct rests upon evidence and facts that have been officially recorded and are on file within the Navy generally require injury to be service connected injury incurred or aggravated or death resulted from disability incurred or aggravated in the line of duty

116. LINE OF DUTY/MISCONDUCT Follow-Up Actions Reserve Incapacitation Pay CA must issue interim determination w/in 7 days of being notified reservist not on active duty list has incapacitating injury or disease incurred or aggravated while on active duty (including leave and liberty), active duty for training, inactive duty training, travel to or from such duty to start incapacitation pay If final determination is adverse, incapacitation pay will cease SECNAVINST 1770.3

117. LINE OF DUTY/MISCONDUCT Check List The following matters should be included, as applicable, to any investigation convened to inquire and make recommendations concerning LOD/Misconduct: Identifying information Facts Records Site of incident Duty status Reserves Injuries Impairment Mental competency Privacy Act Warnings

118. LINE OF DUTY/MISCONDUCT Check List Identifying information Complete name, grade or title, service or occupation and station or residence of all persons, military and civilian, killed or injured incident to event under investigation must provide Privacy Act if personal information (residence, SSN requested)

119. LINE OF DUTY/MISCONDUCT Check List Facts All facts leading up to and connected with an injury, disease or death

120. LINE OF DUTY/MISCONDUCT Check List Records Military/Civilian Police accident reports Hospitalization/clinical records Death certificates Autopsy reports Coroners' inquests Medical examiners' reports pathological, histological, and toxicological studies

121. LINE OF DUTY/MISCONDUCT Check List Site of incident Complete information concerning site and terrain where incident occurred photographs videotapes maps charts diagrams other exhibits that may be helpful

122. LINE OF DUTY/MISCONDUCT Check List Duty status Include all pertinent facts with resect to the duty, leave, liberty, or unauthorized absence status at the time of the incident

123. LINE OF DUTY/MISCONDUCT Check List Reserves Provide complete information as to the member's status in relation to extended active duty, active duty for training, or travel to and from such duty, at the time of the incident

124. LINE OF DUTY/MISCONDUCT Check List Injuries Provide complete information as to the nature and extent of all injuries to naval personnel and the place and extent of any hospitalization resulting therefrom Include costs when civilian facilities are used Include lost time

125. LINE OF DUTY/MISCONDUCT Check List Impairment When relevant, provide: state of intoxication extent of impairment of physical/mental faculties of all persons involved results of blood, breath, urine, or other tissue tests for the intoxicating agent

126. LINE OF DUTY/MISCONDUCT Check List Mental competence In all cases of suicide or attempted suicide, evidence bearing on the mental condition of the deceased or injured person shall be obtained

127. LINE OF DUTY/MISCONDUCT Check List Privacy Act Document that each enclosure containing personal information solicited from individuals complies with the Privacy Act

128. LINE OF DUTY/MISCONDUCT Check List Warnings Document that statements solicited from injured member regarding the incidence or aggravation of an injury or disease are in compliance with § 0221 of the JAGMAN

129. TIP To be eligible for certain retirement and severance pay benefits, members who sustain injuries resulting in permanent disability must have received those injures in the line of duty and not due to their own misconduct. 10 U.S.C. §§ 1201,1203, 1204, 1206, and 1207 require a determination that the injury or disease was not a result of intentional misconduct, willful neglect or during a period of UA. Degree and permanent nature will be determined pursuant to SECNAVINST 1850.4 LOD/misconduct determination will be made by member's CO LOD/misconduct determination will be binding on Physical Evaluation Board, subject to limitations set fort in SECNAVINST 1850.4

130. TIP Whether UA materially interferes with performance of required military duties depends on the facts of each case, applying a standard of reality and common sense Generally speaking, absence in excess of 24 hours constitutes material interference unless there is evidence to the contrary Under 10 U.S.C. § 1207, a member is ineligible for physical disability retirement/severance benefits if the disability was incurred in a UA status, regardless of the length of absence and regardless of whether the absence materially interfered with performance of duties Any injury incurred during a period of UA requiring LOD/misconduct determination must be the subject of a command investigation

131. TIP Deliberately shoots toe off to avoid duty Misconduct injury was intentionally incurred Shoots self while playing Russian roulette Misconduct conduct demonstrates a reckless disregard for the foreseeable and likely consequences Shoots toe off while holstering a weapon with the safety off Not misconduct result of negligent failure to observe a safety precaution

132. TIP Misconduct can never be in the line of duty Whenever injury is determined to have been incurred as a result of own misconduct, it must be accompanied by a determination that the member was not in the line of duty Is permissible to find that the member was not in the line of duty and that the injury was not a result of own misconduct UA member who incurs injury/disease through no fault of his/herself and the absence materially interfered with performance of required military duties

133. TIP In the absence of evidence to the contrary, members are presumed to be mentally responsible for their acts When mental responsibility is raised, and the presumption ceases The investigation must clearly and convincingly establish mental responsibility before an adverse finding may be made bona fide suicide attempt creates strong inference of lack of mental responsibility suicide gesture is deemed to be incurred as a result of misconduct self-inflicted injury not prompted by serious suicidal intent

134. TIP In the case of a member who has a BAC of .10 percent by volume or greater, it may be presumed the member was intoxicated sufficiently to impair the rational and full exercise of mental and physical faculties still must establish that intoxication was the proximate cause of the injury When there is no measurable BAC, or when it is less than .10 percent by volume, intoxication may be found based on relevant information concerning the members condition at the time of the injury still must establish that intoxication was the proximate cause of the injury

135. TIP If the command completing the preliminary inquiry is not a GCMCA, the circumstances surrounding the injury and the results of the preliminary inquiry must be reported to the GCMCA using the Personnel Casualty Report System Provide copy of the preliminary inquiry to appropriate medical department for inclusion in the medical or dental record Upon receipt of the preliminary inquiry GCMCA may order command investigation

136. TIP Member will be advised that he/she does not need to make a statement statement attesting to the warning must be attached If member is also suspected of committing an offense under the UCMJ, must be given Article 31 rights should attach Notification and Election of Rights Upon request, member may be permitted to review the investigation but not to copy it If member submits information for consideration, it must be attached to the investigation after report is final, may request copy under Privacy Act If member elects not to submit a statement or fails to respond within 10 calendar days, the election or failure must be noted in the CA's endorsement

137. TIP The investigation is not forwarded to OJAG Copies should be provided to Naval Safety Center when report reveals systematic problems Local Naval Legal Service Office potential claims for or against the government Other commands with direct official interest GCMCA will retain the investigation for 2 years and will serve as the release authority under FOIA and privacy act

138. TIP If the originals cannot be included, then the report shall state where the originals are located and the name and telephone number of the official responsible for their safekeeping.

139. TIP Evidence as to the individual's general appearance and behavior, rationality of speech, coordination of muscular effort, and all other facts, observations and opinions of others bearing on the question of impairment should be obtained. Efforts should be made to determine the quantity of intoxicating agent used and the period of time over which the agent was used.

140. TIP This should include: social background actions or moods immediately prior to the suicide or suicide attempt any troubles that might have motivated the incident any relevant medical or counseling information

141. CONSIDERATIONS IN DEATH CASES Investigations conducted to inquire into deaths may incorporate other official reports as enclosures May be recorded by: autopsy reports battlefield reports medical reports

142. CONSIDERATIONS IN DEATH CASES Except when medically attributed to disease or natural causes, NCIS must be notified of all deaths occurring on board a Navy vessel, aircraft or installation

143. CONSIDERATIONS IN DEATH CASES Time Periods should be completed w/in 20 days from date of death/discovery may be extended for good cause CA and subsequent reviewers have 20 days to review and endorse

144. CONSIDERATIONS IN DEATH CASES Death investigations will not be released to the public until final

145. CONSIDERATIONS IN DEATH CASES Preliminary inquiry should be conducted into the death of a member of the naval service or death of a civilian which occur on board places under Navy control Following the preliminary inquiry, CA may exercise any of the options available and report the decision to the ISIC

146. CONSIDERATIONS IN DEATH CASES No further investigation is required if the preliminary inquiry shows that the death: was result of previously known medical condition and the adequacy of military medical care is not in question was the result of enemy action

147. CONSIDERATIONS IN DEATH CASES Further investigation must be conducted if the preliminary inquiry shows: the case involves a civilian or other non-naval personnel found dead on board an activity under naval control, where the death was apparently caused by suicide or other unusual circumstances circumstances surrounding the death calls into question the adequacy of military medical care the case involves the death of a military member and there is a probable connection to naval service, except enemy action the possibility exists that the death was caused by "friendly fire"

148. CONSIDERATIONS IN DEATH CASES A limited investigation is required if the preliminary inquiry shows that the death of a service member occurred at a location in the U.S. but not under military control, while the member was in an off-duty status, and there is no discernable connection to naval service

149. CONSIDERATIONS IN DEATH CASES Completion of a death investigation and its forwarding will not be delayed to await final autopsy reports, death certificates, or similar documents unless their inclusion is absolutely necessary to complete the investigation

150. CONSIDERATIONS IN DEATH CASES Death investigations shall contain opinions concerning line of duty in death cases Determination must be forwarded to GCMCA with assigned SJA Before making an adverse determination, a known potential SBP beneficiary will be given the opportunity to review the report and respond 30 calendar days Determination must be made in writing by the GCMCA and forwarded to Pers-62 for adverse determinations, a complete copy of the investigation is forwarded to Pers-62 determination of GCMCA is sustained unless CNP determines there was a substantial error that could materially affect the determination

151. CONSIDERATIONS IN DEATH CASES For death cases that fall within the definition of a major incident, a court or board of inquiry should be convened If during the course of a court or board of inquiry, it appears that the intentional acts of a deceased member were a contributing cause to the incident, the CA must be notified CA will notify OJAG of the preliminary findings OJAG will advise what additional measures are necessary to ensure a fair hearing regarding the deceased member's actions

152. CONSIDERATIONS IN DEATH CASES Prior to taking action on an investigative report which calls into question the propriety of a deceased individual's conduct, including suicide, the CA may have the report independently reviewed reviewer not connected with investigation process outside CA's immediate COC

153. CONSIDERATIONS IN DEATH CASES The independent reviewer should, to the extent possible, possess training, experience and background to enable him/her to critically analyze the circumstances surrounding the death as documented in the report pilot's death occurred as a result of an aircraft accident, independent reviewer should be a pilot

154. CONSIDERATIONS IN DEATH CASES The review shall be completed within 10 working days of delivery of the report to the reviewer

155. CONSIDERATIONS IN DEATH CASES Standard of Proof To find that the deceased service member may have caused harm or loss of life, including the member's own, through intentional acts, findings of fact relating to those issues must be established by clear and convincing evidence

156. CONSIDERATIONS IN DEATH CASES An advance copy of all death investigations, other than those where only a preliminary inquiry or limited investigation is required, shall be forwarded to the Echelon II Commander after the first endorsement The original report shall note the forwarding of the advance copy and each subsequent reviewer shall provide an advance copy of their endorsement to the Echelon II Commander

157. LINE OF DUTY/MISCONDUCT Follow-Up Actions Survivor Benefits Pay Section 642, National Defense Authorization Act of Fiscal Year 2002 SBP are payable to a qualified survivor when an active duty member dies in the line of duty, regardless of whether the member was retirement eligible at the time of the death. SBP amount is equal to retired pay as if the service member retired with 100% disability which is equal to 75% of the member's base retirement pay. When death not in the line of duty, SBP will not be paid if the member was not retirement eligible. If retirement eligible, SBP will be paid based on the retirement for service rules in effect at the time of the member's death

158. TIP Since reports pertaining to deaths of military members are, by law, generally releasable to family members, and since the deceased cannot contribute to the investigation process, special considerations prevail in the investigation of death cases Discretion must be exercised in enclosing graphic photographs since doing so has significant potential for shocking the sensitivities of relatives and others to whom the investigation may be released such materials should be enclosed separately in an envelope marked: CAUTION. THIS ENVELOPE CONTAINS GRAPHIC PHOTOGRAPHS. VIEWER DISCRETION WARRANTED.

159. TIP Non-compliance with prescribed time limits must be explained in the endorsement from the deviating command and commented upon by subsequent endorsers

160. TIP DON Policy: upon completion of the review by the first flag officer in the chain of command, the reviewer shall release an advance copy to the next of kin if requested release of the advance copy will be made unless release would violate law (investigation classified) or the endorser can state how release would harm command mission, interfere with an ongoing criminal investigation, or why release should not be made for good cause if endorser does not wish to release the investigation to the requesting next of kin, they must contact OJAG Code 35 in providing death investigations to the next of kin, consideration should be given to potential impact graphic photographs, autopsy reports and other written materials containing graphic details should be separately wrapped and labeled releasing authority should ensure, when reasonable, hand delivery of the report by someone who can discuss it with the family normally Casualty Assistance Calls Officer

161. TIP Command shall: obtain the results of the investigation of the incident from civilian authorities and maintain the results as an internal report document, in writing, the reasons for making the determination to conduct the limited investigation, attaching the enumerating reasons to the internal report follow the time constraints noted for the processing of command investigations Completion of these actions shall constitute the final action on the report

162. TIP The unavailability of autopsy reports and death certificates should be noted in the investigative report and the report should be forwarded Documents subsequently obtained will be forwarded by separate correspondence via the review chain with appropriate reference to the investigative report

163. TIP Requirements for LOD/Misconduct determination in death investigations is retroactive to 10 September 2001. Determination affects SBP payment when a service member is retirement eligible if not retirement eligible and there is an adverse finding, no SBP payment will be made

164. TIP The independent reviewer shall not act as the deceased's representative, but should analyze the report from the perspective of the deceased, tempered by the reviewer's own experience, training and education.

165. TIP If the independent reviewer believes comment on the thoroughness of the investigation or accuracy of the findings is warranted, such comments shall be provided in writing to the CA The CA shall consider such comments and take action as the CA deems warranted The reviewer's comments, if any, will be attached to the investigative report

166. TIP Clear and convincing evidence: the truth of the facts asserted is highly probable must leave no serious or substantial doubt as to the correctness of the conclusion in the mind of objective persons after considering all the facts

167. INVESTIGATIONS INTO SPECIFIC TYPES OF INCIDENTS For information on investigations into specific types of incidents, see JAGMAN Chapter II, Part G

168. SUPPORT DOCUMENTS

169. SUPPORT DOCUMENTS

170. What reference governs the conduct of administrative investigations?

171. What are the primary functions of administrative investigations?

172. Of the types of investigations, which one is used to inquire into all incidents?

173. Under what circumstances would a Convening Authority need not take any further action on a preliminary inquiry?

174. What is the function of the Command Investigation?

175. Once a Command Investigation has been reviewed by the Convening Authority, what options may the Convening Authority take on the investigative report?

176. What language must be contained on all Litigation-Report Investigations?

177. A Court/Board of Inquiry is used to conduct investigations into what type of incidents?

178. Of the Court/Board of Inquiry, which one has the power to subpoena civilian witnesses?

179. Of the types of investigations, which does not require the Investigating Officer to be appointed in writing?

180. When attaching photographs or videotapes as enclosures to an investigation, what information must be documented in photographs and video tapes?

181. Under what circumstances does the Investigating Officer need to ensure that the Privacy Act is complied with when conducting witness interviews?

182. Name the four parts of an investigative report?

183. The Preliminary Statement serves what purpose?

184. A Finding of Fact must be supported by what?

185. What must be expressly stated in the Preliminary Statement of a Litigation-Report Investigation?

186. What is the first enclosure in an investigative report?

187. Identify the release authority for the following:Investigations involving actual/possible compromise of classified materialLitigation-Report InvestigationsCommand InvestigationsBoards/Courts of Inquiry

188. What are the possible findings in Line of Duty/Misconduct Investigations?

189. When conducting Line of Duty/Misconduct Investigations, the member is always presumed to be in what status?

190. What must be shown in order to find that an injury or disease was incurred as the result of the member's own misconduct?

191. When conducting an inquiry into Line of Duty/Misconduct, the Convening Authority must convene a Command Investigation when the Preliminary Inquiry shows:

192. When an inquiry into Line of Duty/Misconduct results in a possible adverse finding, what action must be taken by the Convening Authority prior to endorsing and forwarding the investigative report?

193. In investigations to inquire into the death of a service member, the investigation must be completed within ____ days of the date of death/discovery and the CA and subsequent reviewers have ____ days in which to review and endorse.

194. Further investigation to inquire into the death of an individual must be conducted if the preliminary inquiry shows: