# 2011-127 Careers, Entry into the Promotion Zone , Medical Employment Limitation (MEL), Promotion

Case Summary

F&R Date: 2012–02–21

The grievor, sustained injuries while on training which resulted in a temporary medical category and removal from training. The grievor was later assigned medical employment limitations which triggered an administrative review. It was determined that the grievor could no longer be employed in the Infantry occupation and a compulsory occupation reassignment (COR) was recommended. The grievor accepted the Logistics (Sea) occupation with an effective date of transfer of 11 April 2008. The grievor's rank was changed to the Navy equivalent of Acting/Sub-Lieutenant and his enter promotion zone (EPZ) date to Sub-Lieutenant (SLt) was changed from his original date of 1 May 2007 to 11 April 2008. After completion of the required training, the grievor was promoted to SLt retroactively to 11 April 2008, the first day in his new occupation. The grievor requested that his promotion to SLt be backdated to his original EPZ date of 1 May 2007. This request was denied and the grievor submitted a grievance.

The grievor maintained that his training as an Infantry officer was ceased due to an injury attributable to military service as determined by Veterans Affairs Canada and therefore, his training was delayed for "military" reasons rather than for "medical" reasons. Consequently, in the grievor's opinion, his EPZ date should have remained as May 2007. He requested that his promotion to SLt be backdated to May 2007 and his subsequent promotion to Lieutenant (Navy) be backdated to May 2009, with all associated pay and benefits.

The initial authority (IA) denied the grievance, informing the grievor that following a reassignment, a member cannot be promoted to the new rank until qualified in his new occupation and, although a promotion can be backdated in certain circumstances, it cannot be effective prior to the actual change in occupation.

The Board determined that Canadian Forces Administrative Order (CFAO) 11-6 - Commissioning and Promotion Policy - Officers - Regular Force, is the applicable policy in this case. Specifically, the Board noted paragraph 18 of Annex A to CFAO 11-6 which clearly states that the EPZ date will be calculated based on the date training commences or in the case of a military occupation transfer, the date the transfer is effective. The Board found that, in the circumstances, 11 April 2008 was the earliest possible EPZ date the grievor could be given.

In the Board's view, being in receipt of a disability pension/grant or not being able to attend training on the basis of a service related injury is not the same as not being able to attend training for a military reason. Simply illustrated, if training is available and a Canadian Forces (CF) member cannot attend, such a situation cannot be considered a delay for military reasons. The Board noted that the reverse is also true; if a CF member is available to attend training, but the CF is unable to provide such training in a reasonable and acceptable timeline, the delay will normally be attributed to military reasons. In the case of the grievor, while the injury was definitively service related, the Board found that it could not be attributed to a CF decision or lack of action.

The Board noted the grievor's argument that the delay between the time he ceased training to the date his COR was completed, took approximately 13 months; however, taking into consideration the amount of work, the steps and the number of individuals and organizations involved, and given the time of year in which this entire process took place, the Board found that timeline was reasonable and could not be said to amount to a delay for military reasons.

The Board recommended to the Chief of the Defence Staff that the grievance be denied.

CDS Decision Summary

CDS Decision Date: 2013–01–18

The FA agreed with the Board's findings and recommendation that the grievance be denied.