R 012041Z MAY 19
MSGID/GENADMIN/CMC DMCS WASHINGTON DC//
SUBJ/CONSIDERATIONS WHEN CONVENING USMC SAFETY INVESTIGATIONS//
REF/B/DOC/OPNAVINST 5102.1D/MCO P5102.1B W/CH 2//
REF/C/DOC/OPNAVINST 3750.6SREF/D/JAGINST 5800.7F//
REF/E/MANUAL FOR COURTS-MARTIAL//
NARR/REF A IS THE DEPARTMENT OF DEFENSE INSTRUCTION, MISHAP NOTIFICATION, INVESTIGATION, REPORTING, AND RECORD KEEPING. REF B IS THE NAVY AND MARINE CORPS MISHAP AND SAFETY INVESTIGATION, REPORTING, AND RECORD KEEPING MANUAL. REF C IS THE NAVAL AVIATION SAFETY MANAGEMENT SYSTEM. REF D IS THE MANUAL OF THE JUDGE ADVOCATE GENERAL (JAGMAN). REF E IS THE MANUAL FOR COURTS-MARTIAL.//
POC/M. S. MILLER/GS-15/CMC SD/TEL: 703-604-4173//
POC/W. SHEW/MAJ/CMC JA/TEL: 703-693-8901/EMAIL: WAYNE.SHEW@USMC.MIL//
GENTEXT/REMARKS/1. General. This MARADMIN provides guidance to commanders on de-conflicting Safety Investigations (SI), conducted pursuant to references (a)-(c), with other investigations or criminal prosecutions, conducted pursuant to references (d)-(e) after an incident or accident.
a. Goals of Criminal Prosecution and SI. A criminal prosecution promotes justice and enhances good order and discipline. A SI analyzes a mishap and may provide a commander with actionable information to prevent a recurrence.
b. Safety Privilege. Some information in a SI is privileged and may not be used for disciplinary or legal administrative purposes. The Secretary of the Navy is responsible for asserting the safety privilege. Courts recognize privilege but may not allow some criminal cases to proceed without release of privileged information.
c. Discovery of Criminal Conduct. References (a)-(c) address criminal acts discovered in the course of a SI and recommend suspending or terminating the SI. The Appointing Authority (AA) (Ground-SIB)/Convening Authority (CA) (Aviation-AMB) decides whether a SI or criminal prosecution takes priority.
a. Commanders. AAs/CAs must familiarize themselves with the references and consult their staff judge advocate and safety director when a SI uncovers suspected criminal misconduct. The AA/CA must weigh the value of lessons learned in a SI against the necessity for criminal proceedings to hold the accused accountable. An AA/CA must consult the Naval Safety Center (NAVSAFECEN) prior to making the determination to halt the SI, however, the decision rests with the AA/CA. Additionally, where criminal misconduct is suspected or an incident results in death, notify the Naval Criminal Investigative Service.
b. Safety Board Members and Investigators. SI investigators shall provide a promise of confidentiality only when necessary to ensure individual witness cooperation. Promises of confidentiality shall not be given on a blanket basis to all witnesses (e.g., to all members of a mishap unit or all first responders). The SI shall ensure other investigations are given access to factual information and documents not derived from privileged safety information. When criminal misconduct is suspected, suspend the investigation, preserve the evidence, and immediately notify the AA/CA, the Controlling Command, and NAVSAFECEN in order to seek a determination on whether to proceed with the SI.
c. Coordination. Parallel independent investigations are encouraged. An AA/CA may convene both SI and legal investigations concurrently, with the option of suspending the SI until the parallel legal investigation is completed. SI privileged information must never be included in or appended to a JAGMAN or other investigation. The Office of the Judge Advocate General of the Navy and staff judge advocates shall not be included as addressees on any SI messages or endorsements, nor shall copies of the SI report be provided to them.
4. Released by Lieutenant General Michael G. Dana, Director, Marine Corps Staff, HQMC.//