Circumstances Governed by More than One Policy

There are 2 issues related to topic "Circumstances Governed by More than One Policy".

Topic

Circumstances Governed by More than One Policy

Case number

• 2008-013 (F&R Date: 2009–09–15)

Description

The Board reviewed a case where a member was convicted of criminal charges arising from domestic violence and was subsequently imprisonned. The Board noted that two CF policies were applicable to the situation: Members involved in family violence, Defence Administrative Order and Directive (DAOD) 5044-4, and members incarcerated in civilian prisons, Canadian Forces Administrative Order (CFAO) 15-2 – Release. However, the Commanding Officer (CO) failed to submit a recommendation for retention or release as required by the CFAO. On the other hand, the DAOD vests considerable authority in the CO in dealing with a member involved in domestic violence. The Board was of the view that clear guidance was required, both to the chain of command and National Defence Headquarters personnel authorities, where members are incarcerated after conviction of an offence related to family violence.

Recommendation

The Board recommended to the Chief of the Defence Staff that he request clarification or policy amendment to provide clear guidance in cases including both family violence and civil imprisonment.

Final Authority Decision

The CDS agreed with the Board's systemic recommendation that there is confusion between DAOD 5044-4 and CFAO 15-2, Annex A, paragraph 17. Therefore, the CDS directs D Med Pol, in consultation with the DMCA, to review the policies to better define roles and responsibilities when both family violence and a civil conviction/imprisonment are present in a case.

Topic

Circumstances Governed by More than One Policy

Case number

• 2011-021 (F&R Date: 2011–05–02)

Description

This is the second case of this nature, from the same formation, that the Board has reviewed. They involve reservists who, after being promoted, agreed or decided to work for long employment periods in Class B service at a rank lower than their substantive rank. When again employed at their substantive rank, the Incentive Pay Category (IPC) for each of these military members was calculated taking into account the periods of military service at the lower rank. During an administrative review, it was determined that the IPCs had been erroneously calculated in that they should have not included the periods served at a lower rank. Consequently, each military member had to reimburse the overpayment associated with this calculation error.

The Board found that the regulations and policies applicable before 1 Apr 93, the effective date of NDHQ Instruction ADM (per) 2/93 – Administration of Class A, B and C Reserve Service (Instruction 2/93), enabled military members to relinquish their rank in order to accept a position requiring a lower rank. At that time, there were only two conditions: an offer from the Canadian Forces (CF) and the military member’s consent. However, with the introduction of Instruction 2/93, which was replaced by Instruction 20/04, the Board found that new conditions and numerous specifics surrounding the relinquishment of rank had been introduced. While it was still possible for a military member to provide reserve service in an over-ranked or under-ranked position, the CF discouraged and prohibited this practice except in certain situations. In other words, the relinquishing of rank is a temporary and exceptional measure. The Board was of the opinion that by introducing these exceptions, the CF had implemented conditions aimed at ensuring equal opportunity and a framework that promotes the development and advancement of reservists.

In the two cases reviewed, the Board found that, in light of Instruction 2/93, both military members should have been employed at their substantive rank effective 1 Apr 93. As a result, the Board recommended that the Chief of the Defence Staff (CDS) order the recalculation of the grievors’ IPC taking into account that they should have worked at their substantive rank as of 1 Apr 93.

Recommendation

Since these do not appear to be isolated cases, the Board recommended that the CDS order a review of all similar cases handled by this formation during the 2005–2008 period, using the interpretation and application of the instructions in effect that were suggested by the Board.

Final Authority Decision

The CDS did not agree with the systemic recommendation regarding errors in the pay of service personnel employed in an “over-ranked” position in the Reserve, since he disagrees with the Board’s interpretation of the current regulations.