Chapter
1
Introduction
Section I Information
1–1. Purpose
This regulation prescribes policies and procedures for
investigating the circumstances of disease, injury, or death of a soldier. It
provides standards and considerations used in determining line of duty (LD)
status.
1–2.
References
Required and related publications and prescribed and
referenced forms are listed in appendix A.
1–3.
Explanation of abbreviations and terms
Abbreviations and special terms used in this regulation are
explained in the glossary.
Section II Responsibilities
1–4. Secretary of the Army
The Secretary of the Army (SA), or authorized designee,
unless otherwise indicated in this regulation, reserves all powers, functions,
and duties relating to LD determinations. The authority conferred by this
provision will not restrict the designee from using self-discretion in
referring any case to the SA for consideration and final decision.
1–5. Deputy Chief of Staff, G–1
The Deputy Chief of Staff, G–1
will—
a.
Publish policies and procedures related to LD determinations.
b. Ensure
LD investigations are accurate and timely.
1–6. Commanding General, U.S. Army Human
Resources Command
The Commanding General (CG), U.S.
Army Human Resources Command (USA HRC) will—
a.
Have functional responsibility for LD determinations and act
for the SA on all LD determinations and appeals referred to Headquarters,
Department of the Army (HQDA) and all exceptions to procedures described in
this regulation.
b.
Take final action on all death cases.
1–7. Chief, National Guard Bureau
The Chief, National Guard Bureau
(CNGB) will—
a.
Be responsible for the LD investigation process within the
Army National Guard (ARNG).
b.
Act in the name of the SA as the final approving authority
for the ARNG except for those soldiers in a Federalized status or attending an
Active Army Service School. This authority may be delegated to a civilian
employee whose regularly assigned duties are equal to the duties normally
assigned field grade officers or field grade officers on duty with the National
Guard Bureau (NGB). The CNGB may further name an alternate if the principal
designee is absent. The alternate will be a field grade officer or a civilian
employee of the NGB whose regularly assigned duties are equal to the duties
normally assigned field grade officers. All delegations will be in writing and
will remain valid until revoked in writing. To satisfy legal review during
appeals, a copy of the delegation document will be included in all cases where
delegated authority has been exercised.
1–8. Major continental U.S. Army commanders
The major continental U.S. (CONUS) Army commanders will
supervise the LD investigation process under their jurisdiction. (See AR
600–8–1.)
1–9. Major overseas commanders and continental
U.S. casualty area commanders
These commanders, as defined in
AR 600–8–1, will—
a.
Supervise the LD investigation process within their
jurisdiction.
b.
Ensure LD investigations are initiated promptly.
c. Ensure
LD investigations are submitted in the proper format.
1–10. Final approving authority
The General Court-Martial
Convening Authority (GCMCA)—
a.
Acts as final approving authority for formal LD
investigations on behalf of the SA. Reviews LD investigations
for compliance with this
regulation.
b.
May delegate final approving authority in writing to a field
grade officer on the staff of the GCMCA. A copy of
the delegation document will be
included in all cases where delegated authority has been exercised.
c.
May request approval from HQDA (AHRC–PEZ) that the final
approving authority be a general officer in the
chain of command who has access
to military legal advice but does not have GCMCA.
d.
Except as provided in paragraph 1–14, final approving
authority will act as "reviewing authority." The reviewing authority
block on DD Form 261 (Report of Investigation — Line of Duty and Misconduct
Status) will be annotated,
"SAME AS FINAL APPROVING AUTHORITY."
1–11. Appointing authority
The LD appointing authority is
normally the Special Court-Martial Convening Authority (SPCMCA) for the soldier
who is the subject of the LD investigation. For the ARNG, the LD appointing
authority should be a commander of at least a battalion- or squadron-size unit
to which the soldier is assigned or attached at the time of the incident.
a.
The appointing authority may approve informal LD
investigations except within the ARNG.
b.
The appointing authority may delegate all duties and
responsibilities to the unit S–1 or other appropriate staff officer. All
delegations will be in writing and will remain valid until revoked in writing.
All delegations will be included with the LD investigation report.
c.
If the incident occurs—
(1)
While the soldier is away from his or her unit (for example, on
leave, in transit, absent without leave (AWOL)),the nearest Army unit with an
SPCMCA will appoint and conduct the investigation. For ARNG soldiers who are
not Federalized and/or not attending an Active Army Service School, the parent
unit is responsible for the investigation.
(2)
During a period when the soldier and his or her unit are training
or on another exercise away from the parentinstallation, the unit commander and
the parent installation are responsible for conducting the investigation. The
host casualty area commander (CAC) and Medical Treatment Facility (MTF)
commander will provide supporting documentation as requested.
1–12. Unit commanders
The unit commander will ensure DA Form 2173 (Statement of
Medical Examination and Duty Status) is completed promptly and forwarded
through channels to the appointing authority.
1–13. Medical Treatment Facility commanders
The MTF commander or an
authorized representative (attending physician or patient administrator) will
ensure that section1 of DA Form 2173 is promptly completed when a condition
outlined in paragraph 2–3 exists. The MTF commander makes determinations that
involve—
a.
Total physical incapacitation of a soldier for more than 24
hours because of the abuse of alcohol or other drugs (para 4–10a).
b.
Conditions that existed prior to service (EPTS) and diseases
not related to misconduct or negligence.
1–14. State
Adjutants General
The state Adjutants General (AG) will function as the
reviewing authority for ARNG.
1–15.
Casualty area commander
Each CAC will ensure prompt completion of LD
investigations.
Chapter 2
Line
of Duty Determinations
2–1. General
Line of duty determinations are
essential for protecting the interest of both the individual concerned and the
U.S. Government where service is interrupted by injury, disease, or death.
Soldiers who are on active duty (AD) for a period of more than 30 days will not
lose their entitlement to medical and dental care, even if the injury or
disease is found to have been incurred not in LD and/or because of the soldier’s
intentional misconduct or willful negligence, Section 1074, Title 10, United
States Code (10 USC 1074). A person who becomes a casualty because of his or
her intentional misconduct or willful negligence can never be said to be
injured, diseased, or deceased in LD. Such a person stands to lose substantial
benefits as a consequence of his or her actions; therefore, it is critical that
the decision to categorize injury, disease, or death as not in LD only be made
after following the deliberate, ordered procedures described in this
regulation.
2–2.
Reasons for conducting line of duty investigations The following are
reasons for conducting LD investigations:
a.
Extension of enlistment. An enlisted soldier who is
unable to perform duties for more than one day because of his or her
intemperate use of drugs or alcohol or because of disease or injury resulting
from the soldier’s misconduct is liable after returning to duty to serve for a
period that, when added to the period that he or she served before the absence
from duty, amounts to the term for which he or she was enlisted or inducted (10
USC 972).
b.
Longevity and retirement multiplier. Eligibility for
increases in pay because of longevity and the amount of retirement pay to which
a soldier may be entitled depends on the soldier’s cumulative years of
creditable service. An enlisted soldier who is unable to perform duties for
more than one day because of his or her intemperate use of drugs or alcohol or
because of disease or injury resulting from misconduct is not entitled to
include such periods in c o m p u t i n g c r e d i t a b l e s e r v i c e i n
a c c o r d a n c e w i t h t h e D e p a r t m e n t o f D e f e n s e F i n a
n c i a l M a n a g e m e n t R e g u l a t i o n
(DODFMR).
c.
Forfeiture of pay. Any soldier on AD who is absent
from regular duties for a continuous period of more than one day because of
disease that is directly caused by and immediately following his or her
intemperate use of drugs or alcohol is not entitled to pay for the period of that
absence. Pay is not forfeited for absence from duty caused by injuries. Pay is
not forfeited for disease not directly caused by and immediately following the
intemperate use of drugs and alcohol.
d.
Disability retirement and severance pay. For soldiers
who sustain permanent disabilities while on AD to be eligible to receive
certain retirement and severance pay benefits, they must meet requirements of
the applicable statutes. One of these requirements is that the disability must
not have resulted from the soldier’s "intentional misconduct or willful
neglect" and must not have been "incurred during a period of
unauthorized absence" (10 USC 1201, 1203, 1204, 1206, and 1207). Physical
Evaluation Board determinations are made independently and are not controlled
by LD determinations. However, entitlement to disability compensation may
depend on those facts that have been officially recorded and are on file within
the Department of the Army (DA). This includes reports and investigations
submitted in accordance with this regulation.
e.
Medical and dental care for soldiers on duty other than AD
for a period of more than 30 days. A soldier of the National Guard or U.S.
Army Reserve (USAR) is entitled to hospital benefits, pensions, and other
compensation, similar to that for soldiers of the Active Army for injury,
illness, or disease incurred in LD, under the following conditions prescribed
by law (10 USC 1074a):
(1)
while performing AD for a period of 30 days or less;
(2)
while performing inactive duty training;
(3)
while performing service on funeral honors duty under 10 USC
12503 or 32 USC 115;
(4)
while traveling directly to or from the place at which that
soldier is to perform or has performed—
(a)
active duty for a period of 30 days or less;
(b)
inactive duty training; or
(c)
service on funeral honors duty under 10 USC 12503 or 32 USC
115;
(5)
while remaining overnight immediately before the commencement of
inactive duty training, or while remainingovernight, between successive periods
of inactive duty training, at or in the vicinity of the site of the inactive
duty training; or
(6)
while remaining overnight immediately before serving on funeral
honors duty under 10 USC 12503 or 32 USC115 at or in the vicinity of the place
at which the soldier was to so serve, if the place is outside reasonable
commuting distance from the soldier’s residence.
f. Benefits administered by the
Department of Veterans Affairs (DVA). In determining whether a veteran or
his or her survivors or family members are eligible for certain benefits, the
DVA makes its own determinations with respect to LD. These determinations rest
upon the evidence available. Usually this consists of those facts that have
been officially recorded and are on file within DA, including reports and LD
investigations submitted in accordance with the provisions of this regulation.
Statutes governing these benefits generally require that disabling injury or
death be service connected, which means that the disability was incurred or
aggravated in LD (38 USC 101). The statutory criteria for making such
determinations are in 38 USC 105.
2–3. Requirements for line of duty
investigations
Line of duty investigations are
conducted essentially to arrive at a determination of whether misconduct or
negligence was involved in the disease, injury, or death and, if so, to what
degree. Depending on the circumstances of the case, an LD investigation may or
may not be required to make this determination.
a. The LD determination is presumed to be
"LD YES" without an investigation— (1) In the case of disease, except
as described in paragraphs c (1) and (8) below.
(2)
In the case of injuries clearly incurred as a result of enemy
action or attack by terrorists.
(3)
In the case of death due to natural causes or while a passenger
in a common commercial carrier or militaryaircraft.
b.
In all other cases of death or injury, except injuries so
slight as to be clearly of no lasting significance (for
example, superficial lacerations
or abrasions or mild heat injuries), an LD investigation must be conducted.
c.
Investigations can be conducted informally by the chain of
command where no misconduct or negligence is indicated, or formally where an
investigating officer is appointed to conduct an investigation into suspected
misconduct or negligence. A formal LD investigation must be conducted in the
following circumstances:
(1)
Injury, disease, death, or medical condition that occurs under
strange or doubtful circumstances or is apparentlydue to misconduct or willful
negligence.
(2)
Injury or death involving the abuse of alcohol or other drugs.
(3)
Self-inflicted injuries or possible suicide.
(4)
Injury or death incurred while AWOL.
(5)
Injury or death that occurs while an individual was en route to
final acceptance in the Army.
(6)
Death of a USAR or ARNG soldier while participating in authorized
training or duty.
(7)
Injury or death of a USAR or ARNG soldier while traveling to or
from authorized training or duty.
(8)
When a USAR or ARNG soldier serving on an AD tour of 30 days or
less is disabled due to disease.
(9)
In connection with an appeal of an unfavorable determination of
abuse of alcohol or other drugs (para 4–10a).
(10)
When requested or directed for other cases.
2–4. Informal LD investigations
Documentation for an informal LD investigation typically
consists of DA Form 2173 completed by the MTF and the unit commander and
approved by the appointing authority, State AG, or higher authority. The final
determination of an informal LD investigation can result in a determination of
"in LD" only, except as provided in paragraph 4–8(c)(1). (See chap 3,
sect I, for a detailed discussion of the informal LD investigation.)
2–5. Formal LD investigations
A formal LD investigation is a detailed investigation that
normally begins with DA Form 2173 completed by the MTF and annotated by the
unit commander as requiring a formal LD investigation. The appointing
authority, on receipt of the DA Form 2173, appoints an investigating officer
who completes DD Form 261 and appends appropriate statements and other
documentation to support the determination, which is submitted to the GCMCA for
approval. (See chap 3, sect II, for a detailed treatment of the formal LD
investigation.)
2–6. Standards applicable to LD determinations
Decisions on LD determinations
will be made in accordance with the standards set forth in this regulation.
a.
Injury, disease, or death proximately caused by the soldier’s
intentional misconduct or willful negligence is "not in LD—due to own
misconduct." Simple or ordinary negligence or carelessness, standing
alone, does not constitute misconduct.
b.
An injury, disease, or death is presumed to be in LD unless
refuted by substantial evidence contained in the
investigation.
c.
Line of Duty determinations must be supported by substantial
evidence and by a greater weight of evidence than supports any different
conclusion. The evidence contained in the investigation must establish a degree
of certainty so that a reasonable person is convinced of the truth or falseness
of a fact, considering—
(1)
All direct evidence, that is, evidence based on actual knowledge
or observation of witnesses; and/or
(2)
All indirect evidence, that is, facts or statements from which
reasonable inferences, deductions, and conclusionsmay be drawn to establish an
unobserved fact, knowledge, or state of mind.
d. No
distinction will be made between the relative value of direct and indirect
evidence. In some cases, direct evidence may be more convincing than indirect
evidence. In other cases, indirect evidence may be more convincing than the
statement of an eyewitness. The weight of the evidence is not determined by the
number of witnesses or exhibits but by the investigating officer and higher
authorities accomplishing the following actions:
(1)
Considering all the evidence.
(2)
Evaluating factors such as a witness’s behavior, opportunity for
knowledge, information possessed, ability torecall and relate events, and
relationship to the matter to be decided.
(3)
Considering other signs of truth.
e. The
rules in appendix B will be considered fully in deciding LD determinations.
These rules elaborate upon, but do not modify, the basis for LD determinations.
Chapter 3
The
Line of Duty Investigation Process
Section I Informal Line of Duty
Investigations
3–1. General
The unit commander will conduct an informal LD
investigation when the circumstances warrant or require one.
3–2. DA Form 2173
The MTF commander (attending physician or patient
administrator) will initiate and complete section I of DA Form 2173. When
appropriate, this section will show the nature and extent of the injury or
disease. In the case of death, it will show the presumptive medical cause of
death. The MTF will send the original DA Form 2173 to the soldier’s unit
commander for completion; a copy will be forwarded to the supporting military
personnel office (MILPO) for information and monitoring. For ARNG, the MTF will
send the original DA Form 2173 to the State MILPO for the soldier’s unit if the
soldier is not Federalized and/or attending an Active Army Service School. The
unit commander will complete section 2 of DA Form 2173 to show duty status at
the time and factual details of the incident.
3–3. Evidence collection
The investigation will ascertain
dates, places, persons, and events definitely and accurately. It is essential
to provide the appointing and approving authority with an accurate
understanding or "word picture" of the incident being investigated.
The commander must ensure that the investigation contains enough pertinent
information and data to enable later reviews to be made without more
information.
a.
All findings of fact should be supported by exhibits. Copies
of military or civilian police accident reports, pertinent hospitalization or
clinical records, autopsy reports, and written statements shall be attached as
exhibits (labeled A, B, C, and so forth), when appropriate. Written statements
by the commander describing matters personally observed and learned are
convenient means to document facts and, when appropriate, shall be attached.
b.
Warning required before requesting statements regarding
disease or injury.
(1)
A soldier may not be required to make a statement relating to the
origin, incurrence, or aggravation of his or herinjury. Any involuntary
statement against a soldier’s interests, made by the soldier, is invalid (10
USC 1219). Any soldier, prior to being asked to make any statement relating to
the origin, incurrence, or aggravation of any disease or injury that the
soldier has suffered shall be advised of his or her right that he or she need
not make such a statement. A statement voluntarily provided by the soldier
after such advice may be considered. The soldier’s right not to make a
statement is violated if a person, in the course of the investigation, obtains
the soldier’s oral statements and reduces them to writing, unless the above
advice was given first.
(2)
If information concerning the incident is sought from the
soldier, the soldier will be advised that he or she doesnot have to make any
statement that is against his or her interest that relates to the origin,
incurrence, or aggravation of any injury or disease he or she suffered. If any
information is obtained from the soldier, a statement attesting the above
warning was given must be attached to the DA Form 2173. Any written
correspondence requesting information from the soldier will also contain the above
warning and be attached to the DA Form 2173. If the soldier is also suspected
or accused of any offense under the Uniform Code of Military Justice (UCMJ),
the soldier should also be advised of his or her rights under UCMJ Art. 31 and
right to counsel. A DA Form 3881 (Rights Warning Procedure/Waiver Certificate)
should generally be used for such advice.
c.
The commander will thoroughly review chapters 3 and 4 for any
additional pertinent procedures or special
considerations before conducting
and completing the investigation.
d.
Promptness in conducting the investigation is of great
importance. Delays often result in failure to secure
important data and information, possibly resulting in an
improper determination.
3–4. Line of duty determination
a.
The final determination of an informal LD investigation can
result in a determination of "in LD" only, except for
those cases described in
paragraph 4–10.
b.
The mere fact that the soldier was in an "authorized
status" (duty, pass, leave, and so forth) does not support a
determination of "in
LD" in and of itself.
c.
A determination of "in LD" may be entered by the
commander only when it has been established that a formal LD investigation is
not required.
d.
A formal LD investigation is required if the injury, disease,
or death occurred under unusual or doubtful circumstances; or if the person
affected by the investigation (to include next of kin) requests one; or the
complexity of the case warrants one; or for any other circumstance outlined in
paragraph 2–3c.
e.
If a formal LD investigation is required or requested, the
unit commander need not enter the details of the
incident in item 30, DA Form 2173; however, the reason a
formal LD investigation is required will be entered.
3–5. Forwarding investigation
The commander will forward the investigation
file to the appropriate appointing/approving authority for review and, if
authorized, approval. The investigation file should be assembled as shown
below.
a.
DA Form 2173 on top.
b.
Any of the following, if applicable:
(1)
Statement or written correspondence indicating that the soldier
was warned of his or her right not to make astatement.
(2)
Police report.
(3)
Medical documentation.
(4)
Statements.
(5)
ARNG: Copy of the training schedule for periods of inactive duty
training (IDT) exceeding two days (such as amultiple unit training assembly
five (MUTA–5)).
(6)
ARNG: Copy of the training schedule for any period of IDT
performed in a non-pay status.
(7)
ARNG: Copy of annual training (AT) orders for periods of AT
totaling less than 15 days.
(8)
ARNG: Copy of orders for any period of full-time training duty
(FTTD) performed under 32 USC 504 or 505.
(9) Other
documentation pertinent to the investigation.
3–6. Actions by appointing/approval authority
The LD appointing authority is
normally the SPCMCA (commander of at least a battalion- or squadron-size
organization for ARNG) of the unit to which the person was assigned or attached
at the time of the incident (para 1–11). Except within the ARNG, the appointing
authority may approve informal LD investigations. Within the ARNG the reviewing
authority approves informal LD investigations.
a. The appointing
authority must review all informal LD investigations to determine the proper
action to be taken.
(1)
If the DA Form 2173 indicates a formal LD investigation is
required, then an investigating officer (IO) must beappointed immediately to
conduct a detailed investigation.
(2)
If the DA Form 2173 indicates "in line of duty" and
"no formal investigation required,” it will be reviewed todetermine if
sufficient evidence exists to support the determination. In appropriate cases,
the assistance of the servicing judge advocate (JA) may be requested.
b.
The appointing or approving authority will check all LD
investigations before they are forwarded. The purpose of the check is to
determine whether all pertinent instructions have been followed. The
investigation may be incomplete, or instructions may have not been followed. If
so, the appointing authority will require compliance with instructions or valid
reasons for noncompliance before forwarding the report.
c.
After the informal LD investigation has been reviewed, the
approving authority will take action. "By Authority of the Secretary of
the Army." (See table 3–1 for appropriate action.) Appropriate delegation
of authority documents will be attached.
d.
Notification of completed actions will be accomplished per
paragraph 3–12.
e.
When a formal LD investigation is required, requested, or
otherwise deemed appropriate, the appointing authority
must appoint an IO immediately.
Table
3–1
Processing
informal investigations
Person: MTF
commander (commander having physical or administrative responsibility for MTF
in which the individual is treated or pronounced dead)
Action: Complete
5 copies of section 1, DA Form 2173. Send the original and 3 copies to the
soldier’s unit commander and 1 copy to the supporting MILPO. When USAR and ARNG
personnel are injured during authorized training and are treated by a civilian
doctor, the doctor and the unit commander should complete DA Form 2173. When
the incident occurs while the soldier is away from his unit (that is, on leave,
in transit, AWOL, and so forth), complete section 1, DA Form 2173 and send to
the nearest Army unit that has an appointing authority (State MILPO for ARNG)
in the area of the MTF. However, when the incident occurs during a period when
the soldier and his or her unit are training or on another exercise away from
the parent installation, complete section 1, DA Form 2173 and send to the
parent installation CAC (State MILPO for ARNG). The MTF commander will provide
supporting documentation requested by the parent installation, MILPO, or
responsible unit commander. The MTF will send the original and 4 copies to the
State MILPO for the soldier’s unit if the soldier is not Federalized and/or
attending an Active Army Service School. (See note 2.)
Completion time: 5
calendar days after incident or initial treatment (see note 1).
Person: Individual’s
unit commander
Action: Request
DA Form 2173 from MTF, if not previously received.
Completion time: No
later than 10 days after incident (see note 1).
Table
3–1
Processing
informal investigations—Continued
Person: Individual’s
unit commander
Action: Complete
section 2, DA Form 2173; attach support documents; and send original and 2
copies to the appointing authority for units in the area in which the incident
occurred. U.S. Army Reserve units conducting LD investigations will submit the
LD investigation to the CAC having jurisdiction over the area where the injury
occurred for final processing.
Completion time: 30
calendar days after incident (see note 1).
Person: Appointing
Authority
Action: Review
the LD investigation for completeness and required documents.
a. If approved, annotate forms as follows
(preceded by official designation of headquarters and date, and followed by
signature and signature block):
(1)
For
disease, injury, or death (when appointing authority is the approving
authority)— "Reviewed for completeness. In LD," followed bycommand
line of "BY AUTHORITY OF THE SECRETARY OF THE ARMY." Retain 1 copy,
send original to official military personnel file (OMPF) as follows: for
officers—HQDA (AHRC–MSR), Alexandria, VA 22332–0444; for enlisted—Commander,
U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, IN
46249–5301; for USAR personnel—Commander, USA HRC, ATTN: ARPC–PASD, 1 Reserve
Way, St. Louis, MO 63132–0505; for ROTC cadets—in accordance with AR 145–1.
Send 1 copy each to the soldier’s unit commander and the final approving
authority. (See notes 2 and 3.)
(2)
For
disease, injury, or death (when appointing authority is not the approving
authority), "Reviewed for completeness, In LD," followed
byappropriate command line. Send original and 2 copies to the final approving
authority. b. If disapproved, direct a formal LD investigation.
Completion time: 35
calendar days after incident (see note 1).
Person: Final
Approving Authority
Action: Review
the LD investigation for completeness and required documents. a. If approved,
annotate as outlined under appointing authority.
(1)
For
disease or injury—Retain one copy, send original to OMPF, and 1 copy to the
soldier’s unit commander. An approved copy of LDinvestigation should be
returned to the initiating MTF on all injuries on ARNG and USAR soldiers on AD
for 30 days or less, or initial active duty training (IADT), when they are
patients. For the ARNG, the final approving authority will retain the original
(NGB or State AG). The State AG will indicate final action on all copies
retained and forward copies to the U.S. Property and Fiscal Officer (USPFO) of
the State, the unit commander for filing in the soldier’s military personnel
records jacket (MPRJ), and the soldier in accordance with paragraph 3–12. (See
notes
2, 3.)
(2)
For
deaths—Retain 1 copy and send original and 1 copy through casualty reporting
channels to HQDA (AHRC–PED–S), Alexandria,VA 22332.
b. If disapproved, return to the
appointing authority and direct a formal LD investigation.
Completion time: 40
Calendar days after incident (see note 1).
Notes:
1
If investigation extends beyond time limits, see paragraph
4–4.
2
An extra copy of DA Form 2173 will be prepared for ARNG
personnel attending service school under the jurisdiction of the Army or on ADT
under the Reserve Enlistment Program of 1963 (REP–63). This copy will be filed
in the individual’s field MPRJ, which is returned to the State AG at the end of
service school or ADT.
3
Accomplish notification actions required by paragraph 3–12.
Section II Formal Investigations
3–7. Investigating officer
When a formal LD investigation is to be conducted, an IO
must be appointed in writing. The IO may be a commissioned officer, warrant
officer, or a commissioned officer of another U.S. military service in joint
activities where the Army has been designated as the executive agent. The IO
will be senior in grade to the soldier being investigated, except where the
appointing authority determines that it is impracticable because of military
exigencies (but not because of mere inconvenience).
3–8. Investigation
a.
The procedures for formal boards of officers and
investigations contained in AR 15–6, chapter 5, are not applicable to formal LD
investigations. However, the general guidance of AR 15–6, chapter 5, applies
unless this regulation provides more specific or different guidance.
b.
The IO must be free from bias or prejudice. The IO should
never begin the investigation with predetermined ideas as to the cause of the
injury, disease, or death. To make a thorough and impartial investigation, the
IO should determine the actual facts, not as reported, but as they actually
occurred, as far as possible. The IO should then be able to make an intelligent
and accurate determination. Promptness is crucial in conducting and completing
the investigation. Delays often result in the failure to secure important
information.
c.
The DA Form 2173 will be prepared as follows:
(1)
The MTF commander (attending physician or patient administrator)
will initiate and complete section 1, DAForm 2173. This section will show the
nature and extent of the injury or disease. In the case of death, it will show
the presumptive medical cause of death. The MTF will send the original DA Form
2173 to the soldier’s unit commander for completion and a copy will be
forwarded to the supporting MILPO for information and monitoring. For ARNG, the
MTF will send the original DA Form 2173 to the State MILPO.
(2)
The unit commander will complete section 2, DA Form 2173, to show
duty status at the time of the incident. Ifthe soldier was AWOL at the time of
death, injury, or onset of disease, the information below will be included in
the remarks section of DA Form 2173.
(a)
Normal duty assignment.
(b)
The scheduled hours of duty (including length of duty week).
(c)
If absent because of breaking restriction, the date and hour
the soldier was informed of the restriction.
(d)
If the soldier’s pass privileges were revoked, when, why, and
for how long.
(e)
If reported absent for overstaying leave or pass, the hours
and effective dates of the leave or pass and the time the unauthorized absence
began.
(f)
If reported absent for taking another route, explain the
authorized route and the deviation.
(g)
When a person must be at a specific location between given
hours, the part of the directive that sets the requirements will be extracted
and attached to the DA Form 2173.
(3) If the IO
was not provided the completed DA Form 2173 by the appointing authority, the IO
will request it from the unit commander. If the unit commander has not
completed the form or obtained it from the MTF, the unit commander is
responsible for requesting it from the MTF. Sections 1 and 2 must be completed.
In cases requiring a formal investigation, the commander need not enter the
details of the incident in item 30 only the reason a formal investigation is
required. The IO will provide the details of the incident when completing DD
Form 261.
d.
A warning is required before requesting statements regarding
disease or injury. (See para 3–3b.)
e.
The IO will collect the evidence as follows:
(1)
The IO will ascertain dates, places, persons, and events
definitely and accurately. It is essential to provide theappointing, reviewing,
and final approving authorities with an accurate understanding of the incident
being investigated. The IO must ensure that the investigation contains enough
pertinent information and data to enable later reviews to be made without more
information.
(2)
All findings of fact must be supported by exhibits. Written
statements by the IO describing matters personallyobserved and learned by the
IO are convenient means to document facts and, when appropriate, will be
attached; however, a statement by the IO should not be used as a substitute for
witness statements when they can be obtained. The following is provided as a
convenient checklist of evidence that should be included (as applicable) in
formal reports of investigation concerning misconduct and LD under the
provisions of this regulation:
(a)
The complete name, grade, social security number,
organization, and station of the soldier killed, suffering from a disease, or
injured as a result of an incident or the event under investigation.
(b)
All facts leading up to and connected with an injury,
disease, or death.
(c)
Copies of military or civilian police reports, pertinent
hospitalization or clinical records, autopsy reports, records of coroner’s
inquests or medical examiner’s reports, pathological and toxicological studies,
and boards of inquiry for missing persons.
(d)
Complete information concerning the site and terrain where
the incident in question occurred, and photographs, maps, charts, diagrams, or
other exhibits that may be deemed helpful to a complete understanding of the
incident.
(e)
All pertinent facts with respect to the duty, leave, pass, or
unauthorized absence status of an individual at the time of the incident
resulting in his injury or death.
(f)
Complete information as to the person’s status in relation to
extended AD, ADT, IDT, and so forth (or travel to or from such duty), at the
time of the incident, when the person involved is a soldier of a Reserve
Component. (g) Evidence regarding the state of intoxication and the
extent of impairment of the physical or mental faculties of any person involved
and connected with the incident, when relevant. Evidence as to the general
appearance and behavior, clear and rational speech, coordination of muscular
effort, and all other facts, observations, and opinions of others bearing on
the question of actual impairment shall be made to determine the quantity and
nature of the intoxication agent used and the period of time over which used by
the person. Results of any blood, breath, urine, or tissue tests for the
intoxicating agent should also be obtained and submitted as exhibits (actual
lab slip, if possible). (h) Evidence regarding the mental competence or
impairment of the deceased or injured person, when relevant. In all cases of
suicide or attempted suicide, all possible evidence bearing on the mental
condition of the deceased or injured person shall be obtained. This will
include all available evidence about the person’s social background, his or her
actions and moods immediately prior to the suicide or suicide attempt, any
troubles that might have motivated the incident, and any pertinent examination
or counseling by specially experienced or trained persons. Personal notes or
diaries of the deceased are valuable evidence. In the case of a death by
suicide or a death resulting from an accident involving unusual or suspicious
circumstances (for example, a single car motor vehicle accident) or where the cause
of death is not clear, obtain the opinion of a mental health officer as to the
probable causes of the self-destructive behavior and whether the soldier was
mentally sound at the time of the incident. (See para 4–11b.)
(i)
Documentation that statements solicited from an injured
soldier with respect to the incurrence or aggravation of his or her disease or
injury are in compliance with paragraph 3–3b.
(j)
Additional pertinent procedures or special considerations as
outlined in chapter 4 should be reviewed before conducting and completing the
investigation.
f. The DD Form 261will be
prepared as follows:
(1)
The IO will prepare the report on DD Form 261.
(2)
The report will be unclassified when possible. Classified
material will not be attached unless it is material to theinvestigation.
(3)
The information below will be included in item 10g, DD Form 261,
when appropriate. If additional space isneeded, the IO may attach a
continuation sheet identifying, at the top, the name of individual concerned,
social security number, and date of injury, death, or onset of disease.
(a)
Summary of circumstances and basis for determination.
(b)
Clarification of any discrepancy in the date and place of
injury or death or in the evidence as to the duty status of the soldier.
(c)
Reason for not interviewing the person whose LD status is
being investigated or any witnesses whose testimony may be material.
(d)
Comments of the IO on the credibility of statements of
witnesses.
(e)
List of exhibits.
(4) Documentation will be
lettered and attached as exhibits to DD Form 261 in the order below.
(a)
Instrument that appointed the IO.
(b)
DA Form 2173.
(c)
Documentation attesting that statements solicited from an
injured soldier regarding the incurrence or aggravation of his disease or
injury are in compliance with paragraph 3–3b.
(d)
Copy of orders to active duty or periodic advance training
scheduled for guardsmen and reservists on AD or Reserve duty training.
(e)
Report of autopsy findings. This includes blood alcohol
results and toxicology studies.
(f)
Report of inquest.
(g)
Statements of witnesses and person being investigated.
(h)
Photographs, maps, charts, and so forth, if relevant.
(i)
Copy of letter of sympathy written to the next of kin in
death cases.
(j)
Statement or medical form from medical authorities on period
of hospitalization because of injury or disease. Additional medical forms or
statements should only be used when the information in section I, DA Form 2173
is inadequate to complete a formal investigation.
(k)
Any other exhibits relevant to the case.
(5)
A copy of each exhibit will be attached to each copy of the LD
report and indexed. When possible, the originalcopy of each exhibit will be
attached to the original of the report. When an original document is illegible
or requires translation, a typed copy of the original may be prepared. The
original document and the typed copy will be attached to the LD report. Copies
of exhibits may be attached to the original of a report only when the original
exhibit is required to be filed elsewhere, or the documents are the personal
property of individuals or estates (for example, personal letters or suicide
notes addressed to certain persons). These documents should be photocopied or
duplicated when possible. All exhibits attached to the LD report, which are not
originals, must be legible.
(6)
If an adverse determination is contemplated against the soldier,
based upon information obtained in theinvestigation, the IO will notify the
soldier, in writing, of the proposed adverse determination and provide a copy
of the investigation and the supporting evidence. The soldier will be warned
per paragraph 3–3b and given a reasonable opportunity to reply, in
writing, and to offer rebuttal. Certified mail should be used and the mailing
receipt and return receipt (if any) attached to the LD investigation. If no
response is received, the IO may conclude the investigation and finalize his or
her determination. If a response is received, the IO will review and evaluate
the soldier’s response prior to making the final determination.
(7)
When the IO has completed the investigation and prepared the
report, the IO will mark the appropriate LDdetermination in item 11 of DD Form
261 in cases involving injury, disease, and death. In every formal LD
investigation, the IO will determine if there is substantial evidence of misconduct
or willful negligence to support a decision of "not in line of duty-due to
own misconduct." To arrive at such decisions, the rules in appendix B will
be fully considered. The IO will complete the box to the right of item 11 and
send the report to the appointing authority.
3–9. Actions by appointing authority
The appointing authority will
take the following actions:
a.
Check all LD investigations before they are forwarded. The
purpose of the check is to determine whether all pertinent instructions have
been followed. The investigation may be incomplete or instructions may not have
been followed. If so, appointing authorities will require compliance with
instructions or valid reasons for noncompliance before forwarding the report.
b.
Refer the report of investigation to the servicing JA for
legal review and opinion. The ARNG will refer ARNG reports of investigation to
a JA or licensed attorney (non-JA) soldier of the ARNG, designated by the State
AG. The legal opinion rendered will be attached to the investigation. The JA’s
review will— (1) Determine whether legal requirements are in compliance.
(2)
Ascertain if any error exists and if so, whether such error has a
material or adverse effect on any individual’srights.
(3)
Determine whether the determination of the investigation is
supported by substantial evidence or lack ofevidence.
(4)
Examine the investigation to see if potential claims may be
involved. This is of special concern where medicalcare has been furnished and
the Government may be entitled to recover third party medical claims.
c. Complete the appropriate
blocks on the DD Form 261, approving or disapproving the determination of the
IO. In no case, however, will the appointing authority "disapprove"
without stating the reasons for disapproval and giving the new determination.
If the proposed new determination is different from that of the IO and adverse
to the soldier, the soldier will be advised by the appointing authority in the
same manner as provided in paragraph 3–8f(6). The identity of the
headquarters must be clear and include a complete address. Attach delegation of
authority documents, if applicable, and forward the report of investigation to
the approving authority (reviewing authority in the ARNG).
3–10.
Actions by reviewing authority (Army National Guard) The ARNG
reviewing authority will take the following actions:
a.
Review the investigation for completeness and accuracy. The
report of investigation may be returned through
review channels for corrective
action, if necessary.
b.
Complete the appropriate blocks on the DD Form 261, approving
or disapproving the determination of the appointing authority. In no case,
however, will the reviewing authority "disapprove" without stating
the reasons for disapproval and giving the new determination. If the new
proposed determination is adverse to the soldier and the soldier has not been
previously advised of the adverse determination per paragraph 3–8f(6),
the soldier will be so advised and his or her response, if any, will be
considered before taking action. The identity of the headquarters must be clear
and include a complete address. Attach delegation of authority documents, if
applicable, and forward the report of investigation to the final approving
authority.
3–11. Actions by final approving authority
The final approving authority
will take the following actions:
a.
Review the investigation for completeness and accuracy. The
report may be returned through review channels for
corrective action, if necessary.
b.
Make entries in block 15 and block 21 of DD Form 261. The
final approving authority will approve or disapprove the determination of the
lower headquarters "By Authority of the Secretary of the Army." In no
case, however, will the final approving authority "disapprove"
without stating the reasons for disapproval and giving the new determination.
If the new proposed determination is adverse to the soldier and the soldier has
not been previously advised of the adverse determination per paragraph 3–8f(6),
the soldier will be so advised and his or her response, if any, will be
considered before taking action.
c.
Identify clearly the headquarters and include a complete
address.
d.
Include a copy of the delegation document for officers acting
with delegated authority in the LD case file to
preclude future questions about their legal authority to
act under this regulation.
3–12. Disposition of completed actions
Reports of investigation will be
disposed of as shown in tables 3–1 and 3–2.
a.
In death cases, HQDA (AHRC–PED–S), Alexandria, VA 22332 will
be provided a copy of the completed LD investigation.
b.
In injury or disease cases, the final approving authority
will inform the individuals below of the results—
(1) The
person who was investigated. The report will be mailed to the commander of
the station or unit where the soldier was last known to be assigned. Request
that it be forwarded to the soldier if he or she has been transferred. The
person’s station or unit commander will ensure that the soldier signs for the
delivered LD investigation. When appropriate, certified mail should be used and
the mailing receipt and return receipt (if any) attached to the LD
investigation. The approving authority will withdraw exhibits that contain
classified information and Criminal Investigation Division (CID) reports before
sending the report of investigation. The approving authority will note on DD
Form 261 that the soldier’s copy has been furnished and include the date. The
soldier’s copy will be sent by letter. It will inform the soldier—
(a)
Of his or her right to appeal an adverse determination as
provided in paragraph 4–17 and of his/her right not to make a statement as
provided in paragraph 3–3b.
(b)
If documents have been withdrawn, why it was done, and who is
the release authority. The release authority for CID reports is the Commander,
U.S. Army Criminal Investigation Command, 5611 Columbia Pike, Falls Church, VA
22041–5015.
(2)
The appropriate assignment division. The appropriate
assignment division (see AR 600–8–104 for addresses) for all officers and
warrant officers on active duty for more than 30 days, when the final
determination is not in line of duty.
(3)
The USAR soldier. In the case of USAR soldiers who have
returned home after completion of active duty for training (ADT), IADT, AT,
FTTD, or IDT, the final approving authority will inform the individual through
the Commander, USA HRC, 1 Reserve Way, St. Louis, MO 63132–5200.
c. Notification
letters returned to the final approving authority undelivered will be forwarded
by letter as described below. The letter will request that the notification
letter, including the copy of LD report of investigation, be sent to the
soldier.
(1)
For officers, send to HQDA (AHRC–MSR), Alexandria, VA 22332–0444.
(2)
For enlisted personnel, send to the Commander, U.S. Army Enlisted
Records and Evaluation Center, FortBenjamin Harrison, IN 46249–5301.
Table
3–2
Processing
formal investigations
Person: MTF
commander (commander having physical or administrative responsibility for the
MTF in which soldier is treated or pronounced dead)
Action: Complete
5 copies of section 1, DA Form 2173. Send the original and 3 copies to the
soldier’s unit commander and 1 copy to the supporting MILPO. An extra copy of
DA Form 2173 will be prepared for ARNG personnel attending Service school under
the jurisdiction of the Army or on ADT under the Reserve Enlistment Program of
1963 (REP–63). This copy will be filed in the soldier’s field MPRJ, which is
returned to the State AG at the end of service school or ADT. For USAR and ARNG
personnel who are injured during IDT and are treated by a civilian doctor, the
doctor and the unit commander should complete DA Form 2173. When the incident
occurrs while the soldier is away from his unit (that is, on leave, in transit,
AWOL, and so forth), complete section 1, DA Form 2173, and send to the nearest
Army unit with an appointing authority (State MILPO for ARNG) in the area of
the MTF. However, when the incident occurs during a period when the soldier and
his unit are training or on another exercise away from the parent installation,
complete section I, DA Form 2173, and send to the parent installation CAC
(State MILPO for ARNG). The MTF commander will provide the supporting
documentation requested by the parent installation, MILPO, or responsible unit
commander. The MTF will send the original and 4 copies to the State MILPO for
the soldier’s unit if the soldier is not Federalized and/or attending an Active
Army Service School.
Completion time: 5
calendar days after incident or initial treatment (see note 1).
Person: Individual’s
unit commander
Action: Request
DA Form 2173 from MTF if not previously received.
Completion time: No
later than 10 days after incident (see note 1).
Person: Individual’s
unit commander
Action: Complete
section 2, DA Form 2173; attach supporting documents; and send original and 3
copies to the LD appointing authority.
Completion time: 30
calendar days after incident (see note 1).
Person: Appointing
Authority
Action: Appoint
a disinterested officer in writing to conduct the investigation. The same officer
should be appointed to investigate all injuries or deaths that occurred as a
result of a single incident. Officers who can offer evidence in the case and
soldier’s unit commander will not be appointed as the investigating officer.
(The investigating officer may also be appointed to investigate a claim or
possible future claim in accordance with AR 27–20 if a separate claim’s
investigation is required. The LD investigation will be in lieu of the
investigation by a claims officer required by AR 27–20 if the injury or death
of the person whose LD status is being investigated is the only basis for claim
against the Government of other party or agency.)
Completion time: 35
calendar days after incident (see note 1).
Person: Investigating
officer
Action: Conduct
a formal LD investigation as outlined in this regulation, make a report on DD
Form 261, and send original and 3 copies to the appointing authority.
Completion time: 50
calendar days after incident (see note 1).
Person: Appointing
Authority
Action: Review
the investigation and complete the block titled "Action by the Appointing
Authority" on DD Form 261. Retain 1 copy of the report and send the
original and 2 copies to the final approving authority (or reviewing authority
for ARNG). When the soldier is in the ARNG on duty under 32 USC 503, 504, or
505, the appointing authority will send the original and 2 copies of the report
of investigation to the State MILPO from which the individual was ordered to
duty. The State AG is the reviewing authority. USAR units conducting LD
investigations will submit the LD investigation to the CAC having jurisdiction
over the area where the injury occurred for final processing. (See note 2.) Completion
time: 65 calendar days after incident (see note 1).
Table
3–2
Processing
formal investigations—Continued
Person: Reviewing
Authority (ARNG only)
Action: Review
the investigation, complete the block titled "Action by the Reviewing
Authority" (see notes 2 and 3) on DD Form 261, and send the original and 2
copies to final approving authority.
Completion time: 70
calendar days after incident (see note 1).
Person: Final
Approving Authority
Action:
a. Review the LD investigation and enter
the official designation of the headquarters, the date, approval or disapproval
of the determination (see below), signature, and signature block. (See note 3.)
For disease, injury, or death, use one of the following:
(1) If approved, BY
AUTHORITY OF THE SECRETARY OF THE ARMY;
(2) If disapproved,
substitute the following: Reasons for disapproval are: (give reasons) BY
AUTHORITY OF THE SECRETARY OF THE
ARMY
b. Distribute as follows:
(1) Death—Retain
one copy and send the original and one copy to HQDA (AHRC–PED–S), Alexandria,
VA 22332. (See note 4.)
(2) Disease
or injury—Retain one copy and send original to the custodian of the soldier’s
OMPF. For officers: HQDA (AHRC–MSR),Alexandria, VA 22332–0444; for enlisted:
Commander, U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin
Harrison, IN 46249–5301; for USAR personnel: Commander, USA HRC, 1 Reserve Way,
St. Louis, MO 63132–5200; for ROTC cadets: in accordance with AR 145–1; and one
copy to the soldier being investigated. (See note 4.)
c. Criminal
Investigation Division reports and classified material will not be included in
the copy sent to the soldier.
d. If determination is
"not in LD," final approving authority must also take appeal action
in paragraph 4–17.
e. A copy of an LD
investigation should be returned to the initiating MTF on all injuries
concerning USAR and ARNG soldiers on AD for 30days or less, or IADT, when they
are patients.
f. The
CNGB will retain the original. The CNGB will return one copy to the State AG.
The State AG will annotate all copies to show final actiontaken by the CNGB and
distribute one copy to each of the following:
(1) CNGB for file.
(2) State USPFO.
(3) Unit commander for file
in the soldier’s MPRJ.
(4) The soldier in
accordance with paragraph 3–12.
Completion time: 75
calendar days after incident (see note 1).
Notes:
1
If investigation extends beyond time limits, see paragraph
4–4.
2
The appointing, reviewing, and final approving authorities
may change a previous determination. When a determination is changed, the
reasons for that change will be shown on the back of DD Form 261, if there is
not enough room on the front.
3
Except for ARNG cases, enter "SAME AS FINAL APPROVING
AUTHORITY" in the block title, "Action by Reviewing Authority." 4
Accomplish notification actions required by paragraph 3–12.
Chapter 4 Special Considerations and Other Matters Affecting Line of
Duty Investigations
4–1. Relationship to disciplinary or other
administrative actions
An adverse LD determination is an administrative
determination and not a punitive or judicial action. Disciplinary and other
administrative actions, if warranted, shall be taken independently of any LD
determination. A favorable determination does not preclude separate
disciplinary or administrative actions. An LD determination is not binding on
the issue of guilt or innocence of the soldier in a separate disciplinary
action, the issue of pecuniary liability in a report of survey, or any other
administrative determination.
4–2. Criminal Investigation Division and safety
investigations
A summary of any report by Army CID agents may be used as
evidence in an LD investigation if necessary to complete the investigation.
Accident and safety investigations and reports conducted under AR 385–40 may
not be used as evidence or to obtain evidence in determining the LD status of a
soldier.
4–3. Combining investigations
There is no prohibition against
using the same IO to conduct—
a. An LD
investigation for more than one person involved in the same incident. A
separate investigation must be
completed for each person
involved.
b.
A report of survey or other investigation in conjunction with
the conduct of an LD investigation. Similarly, subject to the requirements of
paragraph 3–3b and the limitations of paragraph 4–2, information,
statements, and exhibits from other investigations may be included in an LD
investigation.
4–4. Time limitations for processing line of
duty actions
Line of duty actions should be completed within the time
limits given in tables 3–1 and 3–2. When an LD investigation, either formal or
informal, is not completed within the given time, the reasons the report is
late should be made part of the remarks section of DA Form 2173 for informal
reports and as part of the investigating officer’s comments on DD Form 261 for
formal reports. These comments can be expanded upon as necessary by the
appointing authority, reviewing authority, or final approving authority. The
mere failure to complete an action within the prescribed time or the failure to
provide reasons the report is late is not a basis to disapprove, reverse, or
change an otherwise proper determination.
4–5. Legal support
Although LD investigations result in administrative
determinations, both the soldier and the IO may obtain legal advice from the
supporting Judge Advocate General’s office (or licensed attorney-member of the
ARNG designated by the State AG) during the course of the investigation to determine
how the facts should be presented and to ensure that all pertinent facts are
revealed. Support may also be provided if the IO experiences difficulties in
obtaining reports and records from various civilian agencies. The purpose of
legal advice is to protect both the rights of the soldier and of the Government
during the conduct of the investigation. Sworn statements, formal hearings, and
verbatim transcripts are not required, and the soldier has no right to
cross-examine witnesses. However, prior to recommending or approving any
determination other than "in line of duty," evidence against the
soldier must be presented to him or her as prescribed in paragraph 3–8f(6).
4–6. Civilian reports and records
During the course of the investigation, it may be necessary
to obtain civilian police reports, medical records, coroner’s reports, and so
forth. This information normally is provided to the Provost Marshal’s office or
the MTF’s patient administrator. The IO should request that military
authorities obtain this information for him or her if the IO is experiencing
difficulties. Assistance and legal support may also be sought from the
servicing JA.
4–7. Unauthorized absence
a. Any
injury or disease incurred while the soldier is AWOL will be handled as
"not in line of duty" unless the soldier was mentally unsound at the
inception of the unauthorized absence. If there is no further misconduct shown
other than AWOL, the correct determination is “not in line of duty—not due to
own misconduct.” To establish that a person was AWOL for LD purposes, it must
be shown that the soldier—
(1) Voluntarily left his or her unit or organization
or other place of duty without proper authority, or (2) Was absent from a
scheduled duty or restriction at the time of injury or disease.
b.
A requirement that a person be present at a specific time and
place is an administrative restriction for LD purposes. To confirm this, the
pertinent part of the directive stating this requirement should be attached to
the report of investigation.
c.
If the driver of a Government vehicle on an authorized trip
is injured during an unjustified deviation from his or
her assigned route, the driver
should be considered AWOL for LD purposes.
d.
Except as provided in e below, the immediate
commander’s (company, equivalent unit, or higher level) findings
of the soldier’s duty status at
the time of the injury, disease, or death is final.
e.
Absences that are initially considered AWOL may be changed by
the proper authority. (See AR 630–10 for
guidance.)
f.
If a soldier has been granted leave or special pass, he or
she will not be considered AWOL if he or she fails to
sign out.
4–8. Medical treatment
The following information
addresses venereal disease, pregnancies and abortions, hernias, surgical
operations and treatments, conditions that existed prior to service, and
presumptions concerning injuries and diseases:
a.
Venereal disease. Venereal disease alone will not
support a misconduct determination if the soldier has complied with the
regulations requiring the soldier to report and receive treatment for such
disease. Unless otherwise directed by the MTF commander, an LD investigation is
not required. When the condition existed before military service and was not
aggravated by it, the determination will be “not in LD—not due to own misconduct.”
b.
Pregnancies and abortions. Pregnancy and related
diagnoses are exempt from LD investigations. Induced abortions that are not
performed in accordance with local law will be subject to a formal LD
investigation when complications or after effects, affect duty performance.
c.
Hernia.
(1)
Soldiers on AD who develop a hernia will be considered to have
acquired the hernia "in LD" unless it wasdocumented at the time of
entry into the Service.
(2)
Soldiers of the USAR and ARNG, while in an authorized duty
status, will be considered to have acquired oraggravated the hernia "in
LD" if the following conditions exist:
(a)
There was no evidence of the hernia at the time of the
examination before entering on such duty (if examination was performed).
(b)
There is evidence of accident or other circumstances
occurring while on duty sufficient to cause the hernia or aggravation of the
hernia.
d. Operations and treatment.
(1)
The LD determination for surgery or treatment of an injury or
disease generally will be the same as that requiredfor the initial injury or
disease.
(2)
Any ill effect directly caused by treatment, anesthetic, or
surgery will be considered—
(a)
"In LD" if such treatment, anesthetic, or surgery
was not a criminal offense under Federal or State law and was administered or
performed by an authorized person.
(b)
"Not LD—not due to own misconduct," if such was
administered or performed while AWOL. If performed on a soldier of the Reserve
Component, not on AD for a disease that was contracted while the soldier was in
a status defined in paragraph 2–2e, the determination is "not in
LD—not due to own misconduct." e. Injury or disease prior to service.
(1)
The term "EPTS" is added to a medical diagnosis. It
shows that there is substantial evidence that the disease orinjury, or
underlying condition existed before military service or it happened between
periods of active service. Included in this category are chronic diseases with
an incubation period that clearly precludes a determination that it started
during short tours of authorized training or duty.
(2)
The doctor, during examination and treatment of the soldier,
usually determines an EPTS condition. The doctorannotates the soldier’s medical
records as to whether the condition existed prior to service. If an LD
determination is required, information from the medical records will be used to
support a determination that an EPTS condition was or was not aggravated by
military service. If an EPTS condition was aggravated by military service, the
determination will be "in LD." If an EPTS condition is not aggravated
by military service, the determination will be "not in LD—not due to own
misconduct."
(3)
Specific findings of natural progress of the pre-existing injury
or disease based upon well-established medicalprinciples alone are enough to
overcome the presumption of Service aggravation.
f. Injury or disease while not on AD or in a status
defined in paragraph 2–2e.
(1) A soldier
is presumed to have been in sound physical and mental condition upon entering
AD or status in paragraph 2–2e. To overcome this, it must be shown by
substantial evidence that the injury or disease, or condition causing it, was
sustained or contracted while neither on AD nor in authorized training. The
following will be sufficient evidence of EPTS:
(a)
Lesions or symptoms of chronic disease so near the date of
entry on AD or authorized training that they could not have started after
entry, or
(b)
Disease within less than the minimum incubation period after
entry on AD or authorized training.
(2)
It is further presumed that, even if the provisions of f(1)
above are overcome by such evidence, any other condition, resulting from the
pre-existing injury or disease, was caused by service aggravation. Specific
findings of natural progress of the pre-existing injury or disease based upon
well-established medical principles, as distinguished from medical opinion
alone are enough to overcome the presumption of Service aggravation.
(3)
Any physical condition having its inception in line of duty
during one period of Service or authorized training inany of the Armed Forces
that recurs or is aggravated during later Service or authorized training,
regardless of the time between, should be in line of duty. The aggravated
condition must not be caused by misconduct or willful negligence.
4–9. Traveling
In determining whether the
disability or death of a soldier was caused by any injury while traveling
directly to or from
AD or duties defined in paragraph
2–2e, consider—
a. Whether training was authorized or
required, that is, complying with orders. b. The hour travel began.
c. The time when the
soldier was scheduled to arrive for duty, or when the soldier ceased to perform
such duty. d. The method of travel.
e.
The travel time authorized.
f.
Whether the best or most direct route was used.
g.
The immediate cause of injury or death.
h.
If death was due to disease, whether it existed before
discharge or release, or whether it was contracted on or aggravated by AD or
duties defined in paragraph 2–2e.
4–10. Intoxication and drug abuse
a.
That portion of time in the hospital that a doctor determines
a soldier to be totally physically incapacitated for more than 24 consecutive
hours solely because of alcohol or drug abuse will be “not line of duty—due to
own misconduct.” Total physical incapacitation means the soldier is so disabled
by the drugs or alcohol that he or she is comatose. The remainder of the period
of hospitalization, treatment, or rehabilitation will be administrative absence
from duty and does not require an LD determination. (Hospitalization of less
than 24 hours for abuse of alcohol or other drugs does not require an LD
determination.) When the person is released from the MTF, the MTF commander or
commander designee will inform the soldier and the soldier’s unit commander in
writing of the LD determination. To preclude unauthorized access to this
information, the memorandum will be transmitted in a sealed envelope marked:
EXCLUSIVELY FOR the unit commander of the individual concerned and will comply
with AR 340–21. The LD determination may be appealed under paragraph 4–17 to
the unit commander. In appealed cases, the MTF will prepare DA Form 2173 upon
request of the unit commander.
b.
An injury incurred as the "proximate result" of
prior and specific voluntary intoxication is incurred as the result of
misconduct. For intoxication alone to be the basis for a determination of
misconduct with respect to a related injury, there must be a clear showing that
the soldier’s physical or mental faculties were impaired due to intoxication at
the time of the injury, the extent of the impairment, and that the impairment
was a proximate cause of the injury.
c.
Development of a disease that may be a result of the abuse of
alcohol or other drugs is not intentional misconduct
within the meaning of 10 USC 1207. It would be considered
as "in line of duty."
4–11. Mental responsibility, emotional
disorders, suicide, and suicide attempts
a.
The MTF must identify, evaluate, and document mental and
emotional disorders. A soldier may not be held responsible for his or her acts
and their foreseeable consequences if, as the result of mental defect, disease,
or derangement, the soldier was unable to comprehend the nature of such acts or
to control his or her actions. Therefore, these disorders are considered
"in LD" unless they existed before entering the Service and were not
aggravated by military service. Personality disorders by their nature are
considered as EPTS.
b.
Line of duty investigations of suicide or attempted suicide
must determine whether the soldier was mentally sound at the time of the
incident. The question of sanity can only be resolved by inquiring into and
obtaining evidence of the soldier’s social background, actions and moods
immediately prior to the suicide or suicide attempt, troubles that might have
motivated the incident, and examinations or counseling by specially experienced
or trained persons. Personal notes or diaries of a deceased soldier are
valuable evidence. In all cases of suicide or suicide attempts, a mental health
officer will review the evidence collected to determine the bio-psychosocial
factors that contributed to the soldier’s desire to end his or her life. The
mental health officer will render an opinion as to the probable causes of the
self-destructive behavior and whether the soldier was mentally sound at the
time of the incident.
c.
If the soldier is found mentally unsound, the mental health
officer should determine whether the soldier’s mental condition was an EPTS
condition aggravated by Service or was due to the soldier’s own misconduct.
Those conditions occurring during the first six months of AD may be considered
as EPTS, depending on history.
d.
In cases of suicide or attempted suicide during AWOL, mental
soundness at the inception of the absence must
also be determined.
e.
An injury or disease intentionally self-inflicted or an ill
effect that results from the attempt (including attempts by
taking poison or drugs) when mental soundness existed at
the time should be considered misconduct.
4–12. Line of duty policy and procedures for
active duty deaths before 10 September 2001
An LD determination is not required for AD deaths before 10
September 2001, but may require an LD investigation. The statement “REVIEWED
FOR COMPLETENESS; NO DETERMINATION MADE,” will be entered in block 30 of DA
Form 2173 for informal LD investigations and block 15 of DD Form 261 for formal
LD investigations for pre10 September 2001 deaths.
4–13. Line of duty policy and procedures for active
duty deaths on or after 10 September 2001
a. All AD deaths on or
after 10 September 2001 require—
(1)
An LD determination.
(2)
An informal or formal LD investigation, except deaths that are
the result of combat, enemy action, attack byterrorists or other forces
antagonistic to the interests of the United States, or in friendly-fire
incidents, or while a prisoner of war. However, an LD determination must be
rendered in all death cases even when an LD investigation is not required.
b.
For purposes of this regulation, AD is full-time duty in the
active military service of the United States. Such term includes FTTD, annual
training duty, and attendance while in the active military service, at a school
designated as a service school by law or by the SA. Such term does not include
full-time National Guard duty. (10 USC 101(d)(1)). This includes reserve
soldiers on AD for annual training duty whether their orders specify a period
of more than 30 days. Reserve soldiers serving periods of IDT are not included.
In accordance with 10 USC 12602, Full-Time National Guard Duty (FTNGD) under 32
USC, will be treated as AD for this purpose and is defined as training or other
duty, other than inactive duty, performed by a soldier of the Army National
Guard of the United States (ARNGUS) in the soldier’s status as a soldier of the
National Guard of a State or territory, the Commonwealth of Puerto Rico, or the
District of Columbia for which the soldier is entitled to pay from the United
States or for which the soldier has waived pay from the United States.
c.
For purpose of rendering an LD determination in death cases,
a soldier’s death will be considered to have
occurred in LD unless—
(1) The death
occurred while the soldier was not serving on AD, or
(2) The death
was the result of the soldier’s intentional misconduct or willful negligence,
or(3) The death occurred during a period of unauthorized absence.
d. If intentional
misconduct or willful negligence or unauthorized absence is involved with an AD
death, then a
formal LD investigation is
required. Otherwise, an informal LD investigation is sufficient.
(1) An
informal or formal LD investigation for a death will describe in block 30 of DA
Form 2173 or block 10 of DD Form 261, respectively, all of the following
(continuation sheets may be used):
(a) The
circumstances under which the soldier died, to include whether the soldier was
serving on AD, and (b) If the death was caused by the soldier’s own
intentional misconduct or willful negligence, and (c) If the death
occurred during a period of unauthorized absence.
(2)
A medical evaluation solely to determine if the condition, which
caused death, existed prior to service is notrequired and has no bearing on an
LD investigation determination in death cases.
(3)
A copy of a civil death certificate, DD Form 1300 (Report of
Casualty), or DD Form 2064 (Certificate of Death(Overseas)), is a required
exhibit to the informal or formal LD investigation for a death case. Additional
exhibits, if applicable, include—
(a)
Witness statements, accident reports, police reports, medical
statements or documents, drug and alcohol test results, and so forth, that
establish the soldier’s intentional misconduct or willful neglect or lack
thereof.
(b)
A properly prepared DA Form 4187 (Personnel Action), or other
properly prepared official documentation, substantiating an unauthorized
absence.
(c)
DA Form 2173.
(d)
Other documents establishing the soldier’s AD status at the
time of death. For Reserve Component soldiers, a copy of the soldier’s orders
are a required exhibit. However, orders alone are not proof of duty status. In
addition to orders, documents such as a DD Form 214 (Certificate Of Release Or
Discharge From Active Duty), signed evaluation reports, pay vouchers or Leave
and Earnings Statements, official certificates of duty performance signed by
commanders or authorized unit personnel, DA Form 1380 (Record of Individual
Performance of Reserve Duty Training), or DA Form 1379 (Unit Record of Reserve
Training) may be used to show the soldier was on AD at the time of death.
e. The following are the
only LD determinations that apply to death cases:
(1)
In line of duty.
(2)
Not line of duty—due to own misconduct.
(3)
Not line of duty—not due to own misconduct.
f.
For deaths that are the direct result of combat, HQDA
(AHRC–PED–S) will prepare the DD Form 261, recording the soldier’s death as in
LD. When HQDA (AHRC–PED–S) prepares a DD Form 261 for combat deaths, exhibits
are not required. Any death not exempted by a(2) above must be
investigated in accordance with this regulation.
g.
Qualified survivors of soldiers who die on AD before becoming
eligible to receive retirement pay, may, on behalf of the soldier and for the
same basis for which a soldier could, appeal an adverse LD determination in a
death case under the provisions of paragraph 4–17 of this regulation. The
appeal must be submitted within 6 years of the date of the LD determination.
(See 10 USC 1448 for an explanation of who is a qualified survivor.)
h.
When completing the DD Form 261 for death cases under the
provisions of this paragraph, ignore all instructions
on the DD Form 261 that indicate not to complete certain
items in death cases.
4–14. Vehicle accidents
If the subject matter of the
investigation involves any motor vehicle accident, the following facts are
important and should be addressed, if applicable:
a.
Speed of vehicle involved, as evidenced by testimony of
witnesses, skid marks, condition of roads, and the
damage to the vehicle.
b.
Road factors, including all road characteristics, natural
obstructions to the driver’s vision, and traffic signs.
c.
Other vehicles, including any part played by them in creating
the conditions that resulted in the accident.
d.
Traffic conditions at the scene of the accident and their
effect on the accident.
e.
Traffic laws and regulations in force pertinent to the
accident, including speed limits and required safety devices.
f.
Light and weather conditions and their effect on driving
conditions.
g.
Mechanical condition of the vehicles involved.
h.
Physical condition of the driver or drivers, including
sobriety, fatigue, and exhaustion, and the effect of their physical condition
on the accident.
i.
Mental condition of the drivers and the effect of the mental
condition of the drivers on the accident. j. Driving experience of the
driver or drivers.
k.
Safety devices installed and whether they were being used at
the time of the accident.
l.
The following information should be provided with respect to
passengers:
(1)
Conduct of passengers and its effect on the driver.
(2)
Prior relationship of passengers and driver that is relevant to
knowledge by any passenger of any impairment ofthe driver (which may have
caused the accident) at the time the passenger entered or had a reasonable
opportunity to leave the vehicle.
(3) Safety devices
installed and whether they were being used at the time of the accident.
4–15. Firearm accidents
The IO should document all the
relevant circumstances surrounding an incident involving self-inflicted gunshot
wounds.
a.
Since many firearm accidents occur with no witnesses other
than the victim, it is imperative that advice concerning the soldier’s rights
in accordance with paragraph 3–3b be given and documented before a
soldier injured as a result of self-inflicted gunshot wounds is interviewed in
the course of the investigation.
b.
The following information should be included in the report of
investigation:
(1)
Date, time, place, and name of witnesses.
(2)
Description of the physical location of the incident and the
physical injuries sustained, including entry and exitwounds, if applicable.
(3)
Description of the firearm and its mechanical condition,
especially safety mechanisms and whether the safetymechanisms were used by the
firearm handler.
(4)
Description of firearm handler’s formal training, experience, and
familiarity with the firearm’s mechanicalcondition, safety mechanisms, and
proper use.
(5)
Full discussion of any psychological problems, discussion of any
mental impairment due to drugs or alcohol use,and, if applicable, statement of
mental responsibility.
4–16. Statements
Oral or written accounts of matters within the personal
knowledge of individuals usually constitute an indispensable part of the
evidence considered in an investigation. The soldier’s statement, if any, as
well as statements by witnesses, will be recorded on DA Form 2823 (Sworn
Statement) when possible. Sworn statements carry more weight than unsworn
statements and are the preferred form of evidence; however, persons making
statements may be sworn at the discretion of the IO. An IO is authorized to
administer oaths under UCMJ, Art. 136, in the performance of duty.
4–17. Appeals
The following information
addresses policy and procedures concerning appeals to adverse LD
determinations.
a. The
soldier may appeal, in writing, within 30 days after receipt of the notice of
the LD determination required by paragraph 3–12b. For appeals not
submitted within the 30-day time limit, the reason for delay must be fully
explained and a request for exception to the time limit justified. The appeal
must be personally signed by the soldier unless the soldier is physically
unable to sign or is mentally incompetent. In such cases, the appeal will
include evidence of the condition that prevented the soldier from personally
signing. Appeals will be submitted as follows—
(1)
If a soldier is assigned within the geographic area of
responsibility of the original final approving authority or isa soldier of the
ARNG, the appeal will be sent through channels to the final approving
authority. The final approving authority may change his or her previous
determination of "not in line of duty" to "in line of duty"
if there is substantial new evidence to warrant it. If the final approving
authority determines that there is no basis for a change in the determination,
it will be so stated by endorsement and the appeal will be sent to HQDA
(AHRC–PED–S), Alexandria, VA 22332, for final review and determination.
(2)
If a soldier is no longer assigned in the geographic area of
responsibility of the original final approvingauthority, the soldier may send
the appeal directly to HQDA (AHRC–PED–S), Alexandria, VA 22332.
b.
Any change in the determination of the investigation, based
on an appeal, requires the same notification as an
original investigation.
c. Assistance
with appeals may be obtained from the soldier’s supporting legal assistance
office.
4–18. Revision or correction of line of duty
determinations
The commanding general, USA HRC,
acting for the SA, may at any time change a determination made under this
regulation. The correct conclusion based on the facts must be shown. However,
if the change is from "in line of duty" to "not in line of
duty," or, if other evidence is considered which supports a “not in line
of duty” determination, the soldier must be informed of the proposed change,
its basis, and his or her rights under paragraph 3–3b, and be given a
chance to respond in writing in accordance with paragraph 3–8f(6). Any
statement or evidence that the soldier submits must be considered before taking
corrective action. When a determination is changed after final action has been
taken to award statutory benefits (such as entitlement to physical disability
pay), it does not necessarily change the determination on the statutory award.
Final statutory determinations, which are otherwise regular and approved by
competent authority, may not normally be reopened or revoked. Exceptions may be
made under one of the following conditions:
a. In
cases of fraud, mistake of law, mathematical miscalculations, or substantial
new evidence that could not have
been discovered at the same time
or shortly after the determination.
b. When
reopening or revocation is permitted by the law granting the authority for the
statutory determination in
question.
4–19. Processing cases for physical disability
separation
The agencies that process cases for physical disability
separation are not bound by prior LD determinations. When the U.S. Army
Physical Disability Agency believes that a prior LD determination may be
incorrect for any reason, a request for review should be sent to HQDA
(AHRC-PED–S), Alexandria, VA 22332, clearly detailing the reason for such action.
4–20. Members of other armed services
When a member of an armed service
other than the Army is injured, dies, or incurs a disease under circumstances
that would warrant an investigation under this regulation, and it would be
appropriate to conduct an investigation (for example, the individual is
attached to an Army unit/command or is being treated in an Army MTF), the
nearest command of the parent service of the individual shall be notified by
the MTF commander or CAC. If requested, an appropriate investigation shall be
conducted and the report of investigation forwarded in accordance with the
request. No further action need be taken within DA.
Appendix A References
Section I Required Publications
AR
145–1
Senior Reserve Officers’ Training Corps Program:
Organization, Administration and Training (Cited in table 3–1.)
AR
340–21
The Army Privacy Program (Cited in paragraph 4–10a.)
AR
385–40
Accident Reporting and Records (Cited in paragraph 4–2.)
AR
600–8–1
Army Casualty Operations/Assistance/Insurance (Cited in
paragraphs 1–8, 1–9.)
AR
600–8–104
Military Personnel Information Management/Records (Cited in
paragraph 3–12b(2).)
AR
630–10
Absence Without Leave, Desertion, and Administration of
Personnel Involved in Civilian Court Proceedings (Cited in paragraph 4–7e.)
10
USC 1448
Application of Plan http://www.army.mil/references (Cited
in paragraph 4–13g.)
Section II Related Publications
A related publication is a source of additional
information. The user does not have to read it to understand this publication.
AR
11–2
Management Control
AR
15–6
Procedures for Investigating Officers and Boards of
Officers
AR
15–185
Army Board for Correction of Military Records
AR
25–55
The Department of the Army Freedom of Information Act
Program
AR
27–3
The Army Legal Assistance Program
AR
27–20 Claims
AR
40–3
Medical, Dental, and Veterinary Care
AR
40–66
Medical Record Administration and Health Care Documentation
AR
40–400
Patient Administration
AR
40–501
Standards of Medical Fitness
AR
135–2
Army National Guard (ARNG) and US Army Reserve (USAR)
(Full-Time Support (FTS) Program)
AR
135–18
Active Guard Reserve (AGR) Program
AR
135–200
Active Duty for Missions, Projects, and Training for
Reserve Component Soldiers
AR
135–210
Order to Active Duty as Individuals for Other than a
Presidential Selected Reserve Call-up, Partial or Full Mobilization
AR
135–381
Incapacitation of Reserve Component Soldiers
AR
140–1
Mission, Organization, and Training
AR
190–5
Motor Vehicle Traffic Supervision
AR
190–45
Law Enforcement Reporting
AR
600–60
Physical Performance Evaluation System
AR
600–110
Identification, Surveillance, and Administration of
Personnel Infected with Human Immunodeficiency Virus (HIV)
AR
635–40
Physical Evaluation for Retention, Retirement, or
Separation
DOD
5500.7–R
Joint Ethics Regulation (JER)
http://www.dtic.mil/whs/directives
DOD
7000.14–R
Department of Defense Financial Management Regulations
(FMRS) http://www.dtic.mil/whs/directives
DODD
1241.1
Reserve Components Incapacitation Benefits
http://www.dtic.mil/whs/directives
DODD
6490.1
Mental Health Evaluations of Members of the Armed Forces
http://www.dtic.mil/whs/directives
DODI
1332.38
Physical Disability Evaluation
http://www.dtic.mil/whs/directives
DODI
6490.4
Requirements for Mental Health Evaluations of Members of
the Armed Forces http://www.dtic.mil/whs/directives
UCMJ,
Art. 136
Authority to administer oaths and to act as notary
http://www.army.mil/references
5
USC 8140
Members of the Reserve Officers’
Training Corps http://www.army.mil/references
10
USC 101(d)(1)
Definitions http://www.army.mil/references
10
USC 115
Funeral honors duty performed as a Federal function
http://www.army.mil/references
10
USC 972
Members: effect of time lost http://www.army.mil/references
10
USC 1074
Medical and dental care for members and certain former
members http://www.army.mil/references
10
USC 1074a
Medical and dental care: members on duty other than active
duty for a period of more than 30 days http:// www.army.mil/references
10
USC 1201, 1203, 1204, 1206, and 1207
Regulars and members on active duty for more than 30 days:
retirement http://www.army.mil/references
10
USC 1219
Statement of origin of disease or injury: limitations
http://www.army.mil/references
10
USC 2109
Practical military training http://www.army.mil/references
10
USC 2110
Logistical Support http://www.army.mil/references
10
USC 12503
Ready Reserve: funeral honors duty
http://www.army.mil/references
10
USC 12602
Members of Army National Guard of United States Air
National Guard of United States: credit for service as members of National
Guard http://www.army.mil/references
28
USC 2671
Definitions http://www.army.mil/references
38
USC 101
Definitions http://www.army.mil/references
38
USC 105
Line of duty and misconduct http://www.army.mil/references
32
USC 503, 504, or 505
Participation in field exercises
http://www.army.mil/references
Section III Prescribed Forms
Except where otherwise indicated below, the following forms
are available: DA Forms are available on the U.S. Army Publishing Directorate
Web site (http://www.apd.army.mil); DD Forms are available at
http://www.dior.whs.mil.
DA
Form 2173
Statement of Medical Examination and Duty Status
(Prescribed in paragraph 2–4 and 3–2.)
DD
Form 261
Report of Investigation - Line of Duty and Misconduct
Status (Prescribed in paragraph 2–5.)
Section IV Referenced Forms
DA
Form 1379
Unit Record of Reserve Training (form available through
normal supply channels)
DA
Form 1380
Record of Individual Performance of Reserve Duty Training
DA
Form 2823
Sworn Statement
DA
Form 3881
Rights Warning Procedure/Waiver Certificate
DA
Form 4187
Personnel Action
DD
Form 214
Certificate of Release or Discharge from Active Duty (form
available through normal supply channels)
DD
Form 1300
Report of Casualty
DD
Form 2064
Certificate of Death (Overseas) (form available through
normal supply channels)
Appendix B Rules Governing Line of Duty and
Misconduct Determinations
In every formal investigation, the purpose is to find out
whether there is evidence of intentional misconduct or willful negligence that
is substantial and of a greater weight than the presumption of "in line of
duty." To arrive at such decisions, several basic rules apply to various
situations. The specific rules of misconduct are listed below.
B–1. Rule 1
Injury, disease, or death directly caused by the
individual’s misconduct or willful negligence is not in line of duty. It is due
to misconduct. This is a general rule and must be considered in every case
where there might have been misconduct or willful negligence. Generally, two
issues must be resolved when a soldier is injured, becomes ill, contracts a
disease, or dies—(1) whether the injury, disease, or death was incurred or
aggravated in the line of duty; and (2) whether it was due to misconduct.
B–2. Rule 2
Mere violation of military regulation, orders, or
instructions, or of civil or criminal laws, if there is no further sign of
misconduct, is no more than simple negligence. Simple negligence is not
misconduct. Therefore, a violation under this rule alone is not enough to
determine that the injury, disease, or death resulted from misconduct. However,
the violation is one circumstance to be examined and weighed with the other
circumstances.
B–3. Rule 3
Injury, disease, or death that results in incapacitation
because of the abuse of alcohol and other drugs is not in line of duty. It is
due to misconduct. This rule applies to the effect of the drug on the soldier’s
conduct, as well as to the physical effect on the soldier’s body. Any
wrongfully drug-induced actions that cause injury, disease, or death are
misconduct. That the soldier may have had a pre-existing physical condition
that caused increased susceptibility to the effects of the drug does not excuse
the misconduct.
B–4. Rule 4
Injury, disease, or death that
results in incapacitation because of the abuse of intoxicating liquor is not in
line of duty. It is due to misconduct. The principles in Rule 3 apply here.
While merely drinking alcoholic beverages is not misconduct, one who
voluntarily becomes intoxicated is held to the same standards of conduct as one
who is sober. Intoxication does not excuse misconduct. While normally there are
behavior patterns common to persons who are intoxicated, some, if not all, of
these characteristics may be caused by other conditions. For example, an
apparent drunken stupor might have been caused by a blow to the head.
Consequently, when the fact of intoxication is not clearly fixed, care should
be taken to determine the actual cause of any irrational behavior.
B–5. Rule 5
Injury or death incurred while knowingly resisting a lawful
arrest, or while attempting to escape from a guard or other lawful custody, is
incurred not in line of duty. It is due to misconduct. One who resists arrest,
or who attempts to escape from custody, can reasonably expect that necessary
force, even that which may be excessive under the circumstances, will be used
to restrain him or her and, is acting with willful negligence.
B–6. Rule 6
Injury or death incurred while tampering with, attempting
to ignite, or otherwise handling an explosive, firearm, or highly flammable
liquid in disregard of its dangerous qualities is incurred not in line of duty.
It is due to misconduct. Unexploded ammunition, highly flammable liquids, and
firearms are inherently dangerous. Their handling and use require a high degree
of care. A soldier who knows the nature of such an object or substance and who
voluntarily or willfully handles or tampers with these materials without
authority or in disregard of their dangerous qualities, is willfully negligent
. This rule does not apply when a soldier is required by assigned duties or
authorized by appropriate authority to handle the explosive, firearm, or
liquid, and reasonable precautions have been taken. The fact that the soldier
has been trained or worked with the use or employment of such objects or substances
will have an important bearing on whether reasonable precautions were observed.
B–7. Rule 7
Injury or death caused by wrongful aggression or
voluntarily taking part in a fight or similar conflict in which one is equally
at fault in starting or continuing the conflict, when one could have withdrawn
or fled, is not in line of duty. It is due to misconduct. An injury received or
death suffered by a soldier in an affray in which he or she is the aggressor is
caused by his or her own misconduct. This rule does not apply when a soldier is
the victim of an unprovoked assault and sustains injuries or dies while acting
in self-defense. The soldier’s provocative actions or language, for which a
reasonable person would expect retaliation, is a willful disregard for personal
safety, and injuries or death directly resulting from them are due to
misconduct. When an adversary uses excessive force or means that could not have
been reasonably foreseen in the incident, the resulting injury or death is not
considered to have been caused by misconduct. Except for self-defense, a
soldier who persists in a fight or similar conflict after an adversary produces
a dangerous weapon is acting in willful disregard for safety and is therefore
willfully negligent.
B–8. Rule 8
Injury or death caused by a soldier driving a vehicle when
in an unfit condition of which the soldier was, or should have been aware, is
not in line of duty. It is due to misconduct. A soldier involved in an
automobile accident caused by falling asleep while driving is not guilty of
willful negligence solely because of falling asleep. The test is whether a
reasonable person, under the same circumstances, would have undertaken the trip
without expecting to fall asleep while driving. Unfitness to drive may have
been caused by voluntary intoxication or use of drugs.
B–9. Rule 9
Injury or death because of erratic or reckless conduct,
without regard for personal safety or the safety of others, is not in the line
of duty. It is due to misconduct. This rule has its chief application in the
operation of a vehicle but may be applied with any deliberate conduct that
risks the safety of self or others. "Thrill" or
"dare-devil" type activities are also examples of when this rule may
be applied.
B–10. Rule 10
A wound or other injury deliberately self-inflicted by a
soldier who is mentally sound is not in line of duty. It is due to misconduct.
Suicide is the deliberate and intentional destruction of one’s own life. The
law presumes that a mentally sound person will not commit suicide (or make a
bona fide attempt to commit suicide). This presumption prevails until overcome
by substantial evidence and a greater weight of the evidence than supports any
different conclusion. Evidence that merely establishes the possibility of
suicide, or merely raises a suspicion that death is due to suicide, is not
enough to overcome the in line of duty presumption. However, in some cases, a
determination that death was caused by a deliberately self-inflicted wound or
injury may be based on circumstances surrounding the finding of a body. These
circumstances should be clear and unmistakable, and there should be no evidence
to the contrary.
B–11. Rule 11
Misconduct or willful negligence of another person is
attributed to the soldier if the soldier has control over and is responsible
for the other person’s conduct, or if the misconduct or neglect shows enough
planned action to establish a joint venture. The mere presence of the soldier
is not a basis for charging the soldier with the misconduct or willful negligence
of another, even though the soldier may have had some influence over the
circumstances or encouraged it. If the soldier, however, has substantially
participated with others in the venture, then that is misconduct.
B–12. Rule 12
The line of duty and misconduct
status of a soldier injured or incurring disease or death while taking part in
outside activities, such as business ventures, hobbies, contests, or
professional or amateur athletic activities, is determined under the same rules
as other situations. To determine whether an injury or death is due to willful
negligence, the nature of the outside activity should be considered, along with
the training and experience of the soldier.
Glossary
Section I Abbreviations
AD
active duty
ADT
active duty for training
AG
Adjutant General
AGR
Active Guard Reserve
AR
Army Regulation
ARNG
Army National Guard
ARNGUS
Army National Guard of the United States
AT
annual training
AWOL
absent without leave
CAC
casualty area command
CID
Criminal Investigation Division
CNGB
Chief, National Guard Bureau
CONUS
continental United States
DA
Department of the Army
DOD
Department of Defense
DODFMR
Department of Defense Financial Management Regulation
DVA
Department of Veterans Affairs
EPTS
existed prior to service
FTNGD
full-time National Guard duty
FTTD
full-time training duty
GCMCA
General Court-Martial Convening Authority
HQDA
Headquarters, Department of the Army
IADT
initial active duty training
IDT
inactive duty training
IO
investigating officer
JA
Judge Advocate
LD
line of duty
MILPO
military personnel office
MPRJ
military personnel records jacket
MTF
medical treatment facility
MUTA–5
multiple unit training assembly-five
NGB
National Guard Bureau
OMPF
official military personnel file
ROTC
Reserve Officers’ Training Corps
SA
Secretary of the Army
SMP
Simultaneous Membership Program
SPCMCA
Special Court-Martial Convening Authority
SROTC
Senior Reserve Officers’ Training Corps
UCMJ
Uniform Code of Military Justice
USA
HRC
U.S. Army Human Resources Command
USAR
U.S. Army Reserve
USC
United States Code
USPFO
U.S. States Property and Fiscal Officer
Section II Terms
Existed
prior to service
Any injury, disease, or illness,
to include the underlying causative condition, which was sustained or
contracted prior to the present period of AD or authorized training, or had its
inception between prior and present periods of AD or training is considered to
have existed prior to service. A medical condition may in fact be present or
developing for sometime prior to the point when it is either diagnosed or
manifests symptoms. Consequently, the time at which a medical condition
"exists" or is "incurred" is not dependent on the date of
diagnosis or when the condition becomes symptomatic. (Examples of some
conditions which may be pre-existing are slow-growing cancers, heart disease, d
i a b e t e s , o r m e n t a l c o n d i t i o n s , w h i c h c a n a l l b e
p r e s e n t w e l l b e f o r e t h e y m a n i f e s t t h e m s e l v e s b
y b e c o m i n g
symptomatic.)
Intentional
misconduct
Any wrongful or improper conduct which is intended or
deliberate is intentional misconduct. Intent may be expressed by direct
evidence of a member’s statements or may be implied by direct or indirect
evidence of the member’s conduct. Misconduct does not necessarily involve
committing an offense under the UCMJ or local law
Preponderance
of evidence
Evidence that tends to prove one side of a disputed fact by
outweighing the evidence to the contrary (that is, more than 50 percent).
Preponderance does not necessarily mean a greater number of witnesses or a
greater mass of evidence; rather preponderance means a superiority of evidence
on one side or the other of a disputed fact. It is a term that refers to the
quality, rather than the quantity, of the evidence.
Presumption
An inference of the truth of a proposition or fact, reached
through a process of reasoning and based on the existence of other facts.
Matters that are presumed need no proof to support them, but may be rebutted by
evidence to the contrary.
Proximate
cause
A proximate cause is a cause which, in a natural and
continuous sequence, unbroken by a new cause, produces an injury, illness,
disease, or death and without which the injury, illness, disease, or death
would not have occurred. A proximate cause is a primary moving or predominating
cause and is the connecting relationship between the intentional misconduct or
willful negligence of the member and the injury, illness, disease, or death
that results as a natural, direct and immediate consequence that supports a
“not line of duty—due to own misconduct” determination.
Service
aggravation
Refers to a medical condition that existed prior to service
and which worsened or was aggravated as a result of military service more than
it would have been worsened or aggravated in the absence of military service.
Simple
negligence
The failure to exercise that degree of care which a
similarly situated person of ordinary prudence usually takes in the same or
similar circumstances, taking into consideration the age, maturity of judgment,
experience, education, and training of the soldier. An injury, disease,
illness, or death caused solely by simple negligence is in line of duty unless
it existed prior to entry into the Service or occurred during a period of AWOL
(except when the soldier was mentally unsound at the inception of the
unauthorized absence).
Willful
negligence
A conscious and intentional omission of the proper degree
of care that a reasonably careful person would exercise under the same or
similar circumstances is willful negligence. Willful negligence is a degree of
carelessness greater than simple negligence. Willfulness may be expressed by
direct evidence of a member’s conduct and will be presumed when the member’s
conduct demonstrates a gross, reckless, wanton, or deliberate disregard for the
foreseeable consequences of an act or failure to act. Willful negligence does
not necessarily involve committing an offense under the UCMJ or local law.
Section III
Special Abbreviations and Terms
This section contains no entries.