DAOD 5019-2, Administrative Review


1. Introduction

Date of Issue: 2006-03-03

Date of Last Modification: 2021-05-28

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 the Code of Service Discipline that includes the consumption or influence of alcohol as an element of the offence or as a contributing factor, including, but not limited to, the following offences:

  • impaired driving;
  • impaired driving causing bodily harm or death;
  • refusing to comply with a demand to provide a breath or blood sample;
  • drunkenness under section 97 of the National Defence Act or an offence under QR&O article 19.04, Intoxicants, if dealt with at court martial, or at summary trial if a court martial election was given; and
  • stealing, assault or sexual assault. (Defence Terminology Bank record number 42877)

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

Any conduct or performance involving alcohol that:

  • is an offence under section 97 of the National Defence Act or QR&O article 19.04, Intoxicants, if dealt with at summary trial and a court martial election was not given;
  • is an offence under provincial or municipal law; or
  • demonstrates personal financial mismanagement or any other unacceptable conduct or performance. (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

Abbreviation Complete Word or Phrase

AA (AA)

approving authority

AR (EA)

administrative review

CDS (CEMD) Chief of the Defence Staff

CHRA (LCDP)

Canadian Human Rights Act

CFAO (OAFC)      Canadian Forces Administrative Order
CFLRS (ELRFC) Canadian Forces Leadership and Recruit School
CFRG (GRFC) Canadian Forces Recruiting Group
CMC (CMC) Canadian Military College

CO (cmdt d'unité

commanding officer

CoC (C de C) chain of command
Comd (cmdt) commander

DGMC (DGCM)

Director General Military Careers

D Law Mil Pers (DJ Pers Mil)

Director Law Military Personnel

DMCA (DACM)

Director Military Careers Administration

D Med Pol (D Pol San)

Director Medical Policy

D Mil C (DCM)

Director Military Careers

DSA (DNS) Director Senior Appointments

DND (MDN)

Department of National Defence

HQ (QG)

headquarters

L1 (N1) level one advisor
L2 (N2) level two advisor

MEL (CERM)

medical employment limitation

QR&O (ORFC) Queen's Regulations and Orders for the Canadian Forces
Reg F (F rég) Regular Force
Res F (F rés) Reserve Force
U of S (UdS) universality of service

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:

AR Type Component AR Analyst AA (Note 1) For CAF members of the rank or designation of rank of ...
conduct deficiency (Note 2) Reg F or Res F  DMCA staff DMCA Pte/OS/Avr to LCol/Cdr (Note 3)
DGMC Pte/OS/Avr to Col/Capt(N) 
CMP Pte/OS/Avr to Gen/Adm
performance deficiency (Note 4)

Reg F

D Mil C Staff

D Mil C, DGMC or CMP Pte/OS/Avr to LCol/Cdr, except CWO/CPO 1

DSA Staff

DGMC or CMP

CWO/CPO 1 or Col/Capt(N)

CMP

BGen/Cmdre to Gen/Adm

Res F

L2 HQ or equivalent staff

L2 Comd or equivalent

Pte/OS/Avr to Maj/LCdr

L1 Comd or equivalent

Pte/OS/Avr to Col/Capt(N)

CMP

Pte/OS/Avr to Gen/Adm

performance deficiency of a CAF member on the basic training list

Reg F

unit, school or training institution staff

COs, commandant of a CMC or the CFLRS, Comd CFRG, or equivalent 

Pte/OS/Avr to LCol/Cdr

Res F

L2 HQ or equivalent staff

L2 Comd or equivalent

Pte/OS/Avr to LCol/Cdr

MEL that breaches the principle of U of S (Note 5)

Reg F or Res F

DMCA staff

DMCA

Pte/OS/Avr to LCol/Cdr

DGMC

Pte/OS/Avr to Col/Capt(N)

CMP

Pte/OS/Avr to Gen/Adm

MEL that does not breach the principle of U of S (Note 6) Reg F or Res F unit staff CO Pte/OS/Avr to LCol/Cdr

Note 1 – The AA's authority may not be delegated.

Note 2 – A conduct deficiency occurs if the CAF member does not meet an established standard of behaviour in a regulation, code of conduct, policy, order, instruction or directive applicable to the CAF member. Examples of conduct deficiencies are prohibited drug use, other involvement with drugs, alcohol misconduct, sexual misconduct, harassment, racist conduct, hateful conduct and family violence.

Note 3 – Abbreviations of ranks and designations of rank in this DAOD are used in accordance with the Defence Terminology Bank. See column 3 of the table to QR&O article 3.01, Ranks and Designation of Ranks, for additional designations of rank for CAF members who hold the rank of private and wear an army uniform.

Note 4 – A performance deficiency occurs if a CAF member does not meet an established standard of performance expected of the CAF member in the execution of their duties, tasks or responsibilities, including a minimum operational standard related to U of S under DAOD 5023-1, Minimum Operational Standards Related to Universality of Service.

Note 5 – An AR is conducted if D Med Pol assigns a MEL and DMCA makes the determination that the MEL breaches the principle of U of S.

Note 6 –  If a MEL is assigned that does not result in a breach of the principle of U of S but the AR may result in a release recommendation, a compulsory occupational transfer or a recommendation for continued service subject to employment limitations, the case must be referred by the AA to DMCA.

Procedural Fairness

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

Step What Happens?

Notification

The AA must inform the CAF member that an AR is to be conducted to evaluate the CAF member's service and to select the most appropriate administrative action, if any, in the circumstances.

Disclosure

The AA must provide the CAF member with a disclosure package containing either:

  • a copy of all relevant documents and other information; or
  • a summary of all relevant information.
Note – The disclosure package is used by the AA to reach a decision.

Representations

When the disclosure package is received, the CAF member may provide written representations to the AA, including arguments and facts that may not have been included with the disclosure package and any correction to the disclosed documents and other information that the CAF member considers necessary.

Consideration of all information

The AA considers the disclosure package and any representations made by the CAF member and then reaches a decision.

Provision of decision

The AA provides the decision to the CAF member through the CAF member's CO.

Note – An AR analyst may act on behalf of an AA during any of the above steps, except the Consideration of all information step.

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:

Step Action

1

The authority who recommends an AR must forward the recommendation and all supporting evidence to the appropriate AR analyst.

2

The AR analyst creates an AR case file.

3

The AR analyst sends an advisory message to the CAF member through the CAF member's CO.

4

The AR analyst obtains the significant incident report, military police investigation report, board of inquiry report or other relevant information, as applicable.

5

If there may be a breach of U of S, the AR analyst obtains, in accordance with DAOD 5023-1, military occupation information, for example, Annual Military Occupation Review information, rank documentation, etc., from the applicable authority.

6

The AR analyst:

  • reviews all documentation;
  • prepares a case file synopsis (if required); and
  • prepares a recommendation to be reviewed and approved by the CoC.

7

The CoC reviews the documentation, case file synopsis (if included) and recommendation prepared by the AR analyst and submits a recommendation.

8

A disclosure package is forwarded to the CAF member through the CAF member's CO with a copy of the case synopsis, any recommendation from the CoC and all other documents and information to be considered by the AA.

Note – The CAF member may expedite the AR process by informing the AR analyst in writing that they do not wish to receive the disclosure package.

9

The CAF member may make written representations to the AA through the AR analyst, not later than 30 calendar days after the day that the CAF member receives the disclosure package. If the CAF member does not have sufficient time to make representations, the CAF member may, in writing, request additional time from the AR analyst. The 30 calendar-day time limit is to be interpreted flexibly and reasonably and to take into consideration the CAF member's circumstances.

10

If comments are made, for example by the CO or AR analyst, with respect to the CAF member's representations, the CAF member must be provided with the comments and may make further representations based on the comments.

11

The AA:

  • reviews the AR case file, including the disclosure package and the CAF member's representations if provided;
  • reaches a decision; and
  • provides a written decision to the AR analyst, including the reasons for the decision.

12

The AR analyst forwards the AA's written decision, including the reasons for the decision, to the CAF member through the CAF member's CO.

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 imposing 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:

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:

The, a or an …        

is responsible for ...

DMCA
  • conducting an AR as applicable;
  • coordinating the AR process for the CAF;
  • providing advice regarding the AR process;
  • consulting with D Law Mil Pers as required; and
  • ensuring that an AR conducted in the DMCA organization is consistent with CAF policies and procedures.

DMCPG

  • developing AR policy.
DSA
  • conducting an AR as applicable;
  • providing advice regarding the AR process;
  • consulting with D Law Mil Pers as required; and
  • ensuring that an AR conducted in the DSA organization is consistent with CAF policies and procedures.

D Mil C

  • conducting an AR as applicable;
  • providing advice regarding the AR process;
  • consulting with D Law Mil Pers as required; and
  • ensuring that an AR conducted in the D Mil C organization is consistent with CAF policies and procedures.

D Med Pol

  • assigning permanent MELs;
  • consulting with D Law Mil Pers as required;
  • forwarding form DND 4345-E, Medical Employment Limitations For Administrative Review (AR/MEL), directly to the CAF member’s CO in a clear case in which the illness or injury has resulted in a MEL that does not breach the principle of U of S;
  • forwarding form DND 4345-E in any other case to DMCA; and
  • providing medical advice to the AR analyst and the AA.

L2 Comd or equivalent

  • conducting an AR as applicable;
  • ensuring that an AR conducted at the L2 HQ or equivalent level is consistent with CAF policies and procedures;
  • consulting with the local JAG representative as required; and
  • providing documents and information on Res F members to the applicable AR analyst for an AR conducted for prohibited drug use, other involvement with drugs, sexual misconduct, alcohol misconduct or any other conduct deficiency.

CO

  • recommending the AR process be initiated as required;
  • consulting with the local JAG representative as required;
  • providing all appropriate information and recommendation to the applicable AR analyst;
  • ensuring that assistance is provided to a CAF member in the preparation of their AR representations; and
  • ensuring that all information provided by the AR analyst is passed to the CAF member.

8. References

Acts, Regulations, Central Agency Policies and Policy DAOD

Other References

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