DAOD 5019-2, Administrative Review

Table of Contents

1. Introduction
2. Definitions
3. Abbreviations
4. General Principles
5. Administrative Review Process
6. Compliance and Consequences
7. Responsibilities
8. References

1. Introduction

Date of Issue: 2006-03-03

Date of Last Modification: 2022-06-20

Application: This DAOD is an order that applies to officers and non-commissioned members of the Canadian Armed Forces (“CAF members”).

Supersession:

• CANFORGEN 134/12, Decentralization of Authorities Related to Remedial Measures and Administrative Actions
• CANFORGEN 112/14, Amendment – Decentralization of Authorities Related to Remedial Measures and Administrative Actions

Approval Authority: Chief of Military Personnel (CMP)

Policy Office of Primary Interest: Director Military Careers Policy and Grievances (DMCPG)

Enquiries: Administrative Response Centre (ARC)

2. Definitions

alcohol misconduct (inconduite liée à l'alcool)

Any conduct, other than a conduct deficiency involving alcohol, that is an offence under the Criminal Code or a service offence under the Code of Service Discipline that includes the consumption or influence of alcohol as an element of the offence or as a contributing factor.

Notes 1. Alcohol misconduct includes the following offences in which alcohol is an element of the offence:

• impaired driving;
• impaired driving causing bodily harm or death;
• refusing to comply with a demand to provide a breath or blood sample; and
• drunkenness under section 97 of the National Defence Act or an offence under QR&O article 19.04, Intoxicants.

     2. Alcohol misconduct includes the offences of stealing, assault and sexual assault when alcohol is a contributing                 factor in these offences.  (Defence Terminology Bank record number 42877)

conduct deficiency involving alcohol (écart de conduite lié à l'alcool)

Any conduct or performance involving alcohol that:

a) is a service infraction under QR&O article 120.04, Infractions in Relation to Drugs and Alcohol;

b) is an offence under provincial or municipal law; or

c) demonstrates personal financial mismanagement or any other conduct or performance deficiency. (Defence Terminology Bank record number 43020)

disability(déficience)

Any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug. (Section 25 of the Canadian Human Rights Act)

Note - In the CAF context, a disability is considered to be partial or full impairment in the ability to perform an activity in a manner or within the range considered normal while respecting the principle of universality of service.

hateful conduct(conduite haineuse)

An act or conduct, including the display or communication of words, symbols or images, by a CAF member, that they knew or ought reasonably to have known would constitute, encourage, justify or promote violence or hatred against a person or persons of an identifiable group, based on their national or ethnic origin, race, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics or disability. (Defence Terminology Bank record number 695993)

other involvement with drugs (autre implication dans des activités reliées aux drogues)

Any act, other than prohibited drug use, that:

• involves a drug or is committed with the intent to commit an act that involves a drug; and
• is an offence under federal legislation. (Defence Terminology Bank record number 43165)

prohibited drug use (usage interdit de drogues)

Any use of drugs contrary to QR&O article 20.04, Prohibition. (Defence Terminology Bank record number 693839)

sexual misconduct (inconduite sexuelle)

Conduct of a sexual nature that causes or could cause harm to others, and that the person knew or ought reasonably to have known could cause harm, including:

• actions or words that devalue others on the basis of their sex, sexuality, sexual orientation, gender identity or expression;
• jokes of a sexual nature, sexual remarks, advances of a sexual nature or verbal abuse of a sexual nature in the workplace;
• harassment of a sexual nature, including initiation rites of a sexual nature;
• viewing, accessing, distributing or displaying sexually explicit material in the workplace; and
• any Criminal Code offence of a sexual nature, including:
  • section 162 (voyeurism, i.e. surreptitiously observing or recording a person in a place where the person exposes or could expose his or her genital organs or anal region or her breasts or could be engaged in explicit sexual activity, or distributing such a recording);
  • section 162.1 (publication, etc., of an intimate image without consent, i.e. publishing, distributing, transmitting, selling or making available an intimate image of another person without their consent, such as a visual recording in which the person depicted is nude, exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity); and
  • section 271 (sexual assault, i.e. engaging in any kind of sexual activity with another person without their consent). (Defence Terminology Bank record number 43247)

Note - Brief summaries of sections 162, 162.1 and 271 of the Criminal Code are provided above strictly for the convenience of readers. The actual sections in the Criminal Code should be consulted for all elements and other provisions of these offences.

3. Abbreviations

4. General Principles

Context

4.1 Each CAF member is required to maintain professional standards of conduct and performance. When an incident, a special circumstance, or a conduct or performance deficiency occurs that violates professional standards and calls into question the viability of a CAF member's continued service, an administrative action may be appropriate.

4.2 An AR is the process to determine the most appropriate administrative action, if any, in such a case (see paragraph 5.9 of this DAOD for possible administrative actions which may be initiated as a result of an AR).

Note - Administrative action in the form of a remedial measure may be initiated in accordance with DAOD 5019-4, Remedial Measures, without the conduct of an AR under DAOD 5019-2.

4.3 As part of the AR process, the CAF must ensure that administrative actions:

1. respect DAOD 5516-5, Learning Disability Accommodation during Recruiting, Training and Education, and DAOD 5023-0, Universality of Service; and
2. are not based, in whole or in part, on any prohibited ground of discrimination, as set out in the CHRA, i.e. race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction of an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

4.4 The CAF is committed to an AR process that is fair.

Staff Involvement and AAs in the AR Process

4.5 The AR process in respect of a CAF member involves at least two Reg F or Res F officers as follows:

1. one or more staff officers who act as AR analysts and are responsible for conducting the AR analysis; and
2. one who acts as the AA and is authorized to select and initiate, if appropriate as a result of the AR process, an administrative action in accordance with QR&O or a DAOD.

AR Types

4.6 The following table identifies, by type of AR and component, the AR analyst and the officer who is authorized to act as the AA:

Procedural Fairness

4.7 The following table identifies the minimum steps that must be taken to ensure the AR process is fair:

5. Administrative Review Process

Action Prior to AR Process

5.1 The AR process may be initiated for a conduct or performance deficiency with or without:

1. the prior administration of a remedial measure under DAOD 5019-4; or
2. a recommendation from the CoC that an AR be conducted.

Note – A CO is required to contact DMCA in any case of hateful conduct or sexual misconduct.

Authorities Who May Recommend an AR

5.2 An AR in respect of a CAF member may be recommended by:

1. an initiating authority, as identified in DAOD 5019-4, when:
   1. remedial measures fail to rectify a conduct or performance deficiency; or
   2. an incident, a special circumstance, or a conduct or performance deficiency occurs that violates professional standards and calls into question the viability of the CAF member’s continued service;
2. a career manager or the Res F equivalent, or the CO of a recruiting or training establishment following a training failure;
3. DMCA staff or the L2 HQ or equivalent staff if D Med Pol has assigned a permanent MEL; or
4. a CO when a CAF member cannot meet any one of the minimum operational standards under the principle of U of S (see DAOD 5023-1).

AR Process Table

5.3 The following table is an example of the AR process in which an AR analyst acts on behalf of an AA:

Standard of Proof and Evidence

5.4 Administrative action may be initiated only if there is clear and convincing evidence establishing on the balance of probabilities that an incident, a special circumstance, or a conduct or performance deficiency has occurred that violates professional standards and calls into question the viability of a CAF member's continued service.

Selection of Administrative Action

5.5 The selection of administrative action by an AA must be based upon consideration of the following:

1. the facts of the present case;
2. the CAF member's entire period of service, taking into account the CAF member's rank, military occupation, experience and position;
3. any previous conduct or performance deficiency, with consideration of the degree to which the CAF member:
   1. accepted responsibility or demonstrated remorse for the deficiency; and
   2. took active steps to modify their conduct or performance;
4. the CAF member's leadership role, if any;
5. the result of required consultation with local CF Health Services;
6. the existence of any MEL and disclosed disability, as well as any other employment limitation, subject to the requirements of the principle of U of S in accordance with DAODs 5023-0 and 5023-1; and
7. the CAF member’s representations, if any.

5.6 Although there may exist a link between a demonstrated behavioural issue and a disability, a disability does not automatically excuse a CAF member from the requirement to meet established standards of conduct and performance set out in regulations, codes of conduct, policies, orders, instructions and directives applicable to the CAF member. However, the AA must take the disability and the CAF member’s overall conduct and performance into account and ensure that any administrative action does not conflict with the CHRA.

AR Decisions

5.7 Before any administrative action is initiated, the AA must ensure that they are authorized by QR&O or a DAOD to initiate the selected action.

5.8 As a general principle, the appropriate administrative action is the one that best reflects the degree of incompatibility between the CAF member's conduct or performance deficiency and the CAF member's continued service in the CAF.

5.9 Once an AR case file has been reviewed and a decision reached, the AA may, under applicable regulations, policies, orders, instructions and directives, initiate an administrative action, including:

• remedial measures under DAOD 5019-4;
• occupational transfer;
• transfer between sub-components;
• posting;
• an offer of terms of service in any case in which an offer has not been made by CAF authorities;
• reversion in rank; or
• release or recommendation for release, as applicable.

5.10 If the decision is release, the CAF member is to be released under the most appropriate item in the Table to QR&O article 15.01 Release of Officers And Non-Commissioned Members. CDS guidelines on the selection of the appropriate release in certain specific cases are set out in the Consideration for Attribution of a Release Item document.

Reasons

5.11 The reasons for initiating an administrative action in respect of a CAF member must contain sufficient information:

1. to enable the CAF member to understand why the administrative action was initiated; and
2. to permit review by grievance authorities.

5.12 The reasons provided must specifically:

1. identify the applicable evidence;
2. explain how the evidence was treated; and
3. state any findings based upon the evidence, and given those findings, explain why the specific administrative action was initiated.

AR Case Files

5.13 AR case files must be retained in accordance with policies and procedures set out in the following documents, as applicable:

• DAOD 5050-0, Canadian Forces Personnel Records;
• A-PM-245-001/FP-001, Military Human Resources Records Procedures; and
• Defence Subject Classification and Disposition System.

6. Compliance and Consequences

Compliance

6.1 CAF members must comply with this DAOD. Should clarification of the policies or instructions set out in this DAOD be required, CAF members may seek direction through their CoC. Military supervisors have the primary responsibility for and means of ensuring the compliance of CAF members with this DAOD.

Consequences of Non-Compliance

6.2 CAF members are accountable to their military supervisors for any failure to comply with the direction set out in this DAOD. Non-compliance with this DAOD may have consequences for both the CAF as an institution, and for CAF members as individuals. Suspected non-compliance may be investigated. Military supervisors must take or direct appropriate corrective measures if non-compliance with this DAOD has consequences for the CAF. The decision of an L1 or other senior official to take action or to intervene in a case of non-compliance, other than in respect of a decision under the Code of Service Discipline regarding a CAF member, will depend on the degree of risk based on the impact and likelihood of an adverse outcome resulting from the non-compliance and other circumstances of the case.

6.3 The nature and severity of the consequences resulting from non-compliance should be commensurate with the circumstances of the non-compliance and other relevant circumstances. Consequences of non-compliance may include one or more of the following:

1. the ordering of the completion of appropriate learning, training or professional development;
2. the entering of observations in individual performance evaluations;
3. increased reporting and performance monitoring;
4. the withdrawal of any authority provided under this DAOD to a CAF member;
5. the reporting of suspected offences to responsible law enforcement agencies;
6. the application of specific consequences as set out in applicable laws, codes of conduct, and CAF policies and instructions;
7. other administrative or disciplinary action, or both, for a CAF member; and
8. the imposition of liability on the part of Her Majesty in right of Canada and CAF members.

7. Responsibilities

Responsibility Table

7.1 The following table identifies the responsibilities associated with this DAOD:

8. References

Acts, Regulations, Central Agency Policies and Policy DAOD

• Canadian Human Rights Act
• Criminal Code
• National Defence Act
• Privacy Act
• QR&O 4.02, General Responsibilities of Officers
• QR&O 5.01, General Responsibilities of Non-Commissioned Members
• QR&O Chapter 7, Grievances
• QR&O Chapter 15, Release
• QR&O 19.07, Private Debts
• QR&O 19.08, Bankruptcy
• DAOD 5019-0, Conduct and Performance Deficiencies

Other References

• DAOD 5003-0, Restrictions on Duty and Individual Limitations
• DAOD 5003-6, Contingency Cost Moves for Personal Reasons, Compassionate Status and Compassionate Posting
• DAOD 5516-0, Human Rights
• DAOD 5019-3, Canadian Forces Drug Control Program
• DAOD 5019-4, Remedial Measures
• DAOD 5019-7, Alcohol Misconduct
• DAOD 5019-8, Private Debts
• DAOD 5023-0, Universality of Service
• DAOD 5023-1, Minimum Operational Standards Related to Universality of Service
• DAOD 5023-2, Physical Fitness Program
• DAOD 5044-4, Family Violence
• DAOD 5050-0, Canadian Forces Personnel Records
• DAOD 5516-5, Learning Disability Accommodation during Recruiting, Training and Education
• DAOD 7002-0, Boards of Inquiry and Summary Investigations
• DAOD 9005-1, Sexual Misconduct Response
• CFAO 19-19, Disposal of Absentees
• A-PM-245-001/FP-001, Military Human Resources Records Procedures
• CF Mil Pers Instr 02/19, Learning Disability Accommodation During Recruiting, Training and Education
• CF Mil Pers Instr 01/20, Hateful Conduct
• ADM(HR-Mil) Instruction 11/04, Canadian Forces Medical Standards
• CDS Designated Release Authorities – Regular Force
• CDS Designated Release Authorities – Reserve Force
• CDS Consideration for Attribution of a Release Item
• Defence Subject Classification and Disposition System
• Duty With Honour: The Profession of Arms in Canada
• The Path to Dignity and Respect. The Canadian Armed Forces Strategy to Address Sexual Misconduct
• Form DND 4345-E, Medical Employment Limitations For Administrative Review (AR/MEL)