In fact, three statements, contained in the report and taken from passengers in the petitioner's vehicle, are dated June 8, 1965, thirteen days before the investigator inquired of the petitioner concerning his "desire" to be represented, to cross-examine witnesses and to be present during the proceedings.
One of these statements, attributed to Donald Stuart, a passenger in the rear seat of the car, contained allegations that the petitioner was travelling at a speed estimated to be 60 to 70 miles per hour and that, on several bends in the road, the petitioner's car went "slightly" off the road. This statement was quite evidently regarded as having significant probative value, since the Judge Advocate General, in his reply to plaintiff's counsel, dated November 7, 1966, refers to "testimony" of two disinterested hitchhikers who were picked up by the petitioner before the accident who claimed that the petitioner "* * * was proceeding at the speed of seventy miles per hour both prior to and at the time of the accident."
From our independent examination of the report, such "testimony" could only be the statement of Donald Stuart and the statements of Thomas Dymond and Daniel McGuigan as reported in the police report, who also purportedly stated that the petitioner was driving his car at a speed of 60 to 70 miles per hour.
However, possible inconsistencies appear between the May 31 statements attributed to Stuart and McGuigan in the police report and their respective later statements of June 8, 1965. In the police report Stuart (Stewart) is reported to have said: "About three or four minutes after being picked up the accident happened. It happened so fast; I can't remember what happened next."
According to the police report McGuigan said: "Every bend we came to we slid around. We were going about (60) miles per hour." In McGuigan's statement of June 8, 1965 he stated: "I did not see the speedometer at any time either prior or during the time of the accident. I therefore have no idea of the speed at which the automobile was going at the time of the accident."
Under § 0304(d) " Failure to accord rights - Failure to accord rights of a party to a person whose conduct becomes subject to inquiry may preclude use of the record of proceedings as evidence." The present record does not disclose why the June 8 statements were taken before the petitioner was asked whether he desired to be represented and to cross-examine witnesses. Whether or how the apparent inconsistencies contained in the statements were reconciled by the investigating officer is not known, since we find no expression of opinion by Captain Freeman among the papers comprising his report and denominated as Respondent's Exhibit #1.
The present state of the record, in most unsatisfactory and leads us to conclude that a plenary hearing before the Board, with the petitioner represented by counsel, is necessary to provide the Court and all parties in interest with an adequate record of this entire matter.
Accordingly, we enter the following
Now, this 20th day of January, 1967, it is ordered that
(1) the respondent's motions to dismiss and for summary judgment be, and they are, denied;
(2) the Court has jurisdiction of this petition which it declines to exercise at this time and the petitioner is remanded to the Board for the Correction of Naval Records under 10 U.S.C.A. § 1552;
(3) jurisdiction be, and it is, retained by the Court, pending completion of the proceedings before the Board.
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