# 2008-013 - Administrative Action, Administrative Review, Circumstances Governed by More than One Policy, Civil...

Case Summary

F&R Date: 2009–09–15

The grievor,was implicated in an incident of family violence which resulted in criminal charges and subsequently in civil imprisonment. The grievor’s commanding officer (CO) took administrative action pursuant to Defence Administrative Order and Directive (DAOD) 5044-4 - Family Violence - and placed the grievor on counselling and probation (C&P) which the grievor completed successfully. Some 18 months later, following an administrative review (AR) triggered by the grievor’s civil imprisonment, the Director Military Careers Administration and Resource Management (DMCARM) approved a recommendation that the C&P be considered null and void and that the grievor be released under item 5(f) of the table to Queen’s Regulations and Orders 15.01 – Unsuitable for further Service.

Although the grievor agreed with the recommendation for release, he argued that he should be released under item 3(b) - Medical - alleging that his actions were a direct result of his medical condition, post traumatic stress disorder. The grievor requested that his release item be changed from 5(f) to 3(b).

As the grievor’s medical employment limitations (MEL) breached the universality of service, an AR/MEL was conducted after he was released and concluded that were it not for the fact that the grievor was considered unsuitable for service, he would have been released under item 3(b).

The initial authority, the Director General Recruiting and Military Careers denied the grievance stating that the release was appropriate in the circumstances.

The Board found that the CO had the requisite authority to place the grievor on C&P and that such a decision was reasonable.

The Board found that the DMCARM’s decision to intervene some 18 months later and to initiate another series of administrative measures based on the same set of facts without any new element was unreasonable and unjustified.

The Board found that the DMCARM’s decision was fatally flawed for the following reasons:

• it was based on information that was incomplete and did not portray adequately the grievor’s situation and circumstances; and
• the DMCARM did not consider the appropriate policy in effect at the time prior to rendering his decision.

Based on its finding concerning the C&P and its effect on the grievor’s release under item 5(f), the Board did not see the requirement to explore further whether there was a plausible link between the grievor’s atypical behaviour and his medical condition.

The Board recommended that the Chief of the Defence Staff (CDS) uphold the grievance by directing that the grievor’s C&P be reinstated and that the grievor’s release item be changed to 3(b) – Medical – with associated benefits.

Systemic recommendation

The Board noted the confusion which seemed to arise because both family violence and civil imprisonment were present. On the one hand, DAOD 5044-4 vests considerable authority in the CO. It also contemplates National Defence Headquarters (NDHQ) staff conducting an AR in cases of breach of C&P or where family violence may result in a recommendation for release. On the other hand, in cases of civil imprisonment, Canadian Forces Administrative Order 15-2 does require a CO to submit a recommendation of retention or release to NDHQ. The Board recommended to the CDS that he request clarification or policy amendment to provide clear guidance in cases where both family violence and civil imprisonment are present.

CDS Decision Summary

CDS Decision Date: 2011–11–23

The CDS did not agree with the Board's recommendation to uphold the grievance by directing that the grievor’s C&P be reinstated and that the grievor’s release item be changed to 3(b). The CDS was satisfied that the grievor was treated in accordance with the relevant policy and that his release under item 5(f) was appropriate.

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 directed D Med Pol, in consultation with 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.