# 2012-017 Pay and Benefits, Attach Posting Benefits, Custodial Services Expenses, Incidental Expenses (IE), Meal Expenses, Temporary Duty Benefits
Case Summary
F&R Date: 2012–04–27
The grievor requested reimbursement of custodial expenses (CE) he incurred while on attached-posting as well as reimbursement at the Treasury Board (TB) approved rate for meals at a United States Air Force Base while travelling back from his attached-posting. The grievor stated that the policy applicable to his situation was the Director Compensation and Benefits Administration Domestic Benefits Aide-Mémoire of 1 November 2008.
The initial authority (IA) informed the grievor that the Aide-Mémoire was not applicable to his situation and that the only TB approved policy on CE was detailed in CANFORGEN 034/11 which took effect retroactively on 1 January 2005. The IA denied the grievance on the basis that Canadian Forces (CF) members who are attached-posted within Canada are not eligible for the reimbursement of CE and because the grievor had been reimbursed for the ration expenses he incurred while in transit. The IA explained that, according to the Canadian Forces Temporary Duty Travel Instruction (CFTDTI), the grievor had received an incidental expense allowance to compensate for additional expenses such as snow removal. The IA was satisfied that the grievor had received all benefits to which he was entitled.
The Board noted that the grievor relied on section 2 of chapter 3 of the Aide-Mémoire to justify his request for the reimbursement of CE and that the IA, on the other hand, was of the view that the CFTDTI was the sole authority in this situation. Although it acknowledged that the Aide-Mémoire was not applicable, the Board observed that no explanation had been provided by the IA. The Board indicated that, in previous cases, it had concluded that TB is the sole authority empowered to make regulations concerning CF pay, benefits and allowances and that, through the issuance of the Aide-Mémoire, the CF had expanded or restricted some of the benefits available to CF members in error and without authority. The Chief of the Defence Staff (CDS) agreed with the Board and remedied the situation through a series of CANFORGENs.
The Board found that, although the Aide-Mémoire existed and was used by many CF authorities, it could not be used to justify the reimbursement of the grievor's CE. The Board also noted the grievor's argument that the CF had recently issued a new Compensation and Benefits Instruction (CBI) on the subject, under which the grievor would be eligible for reimbursement of CE; however, the Board pointed out that the CBI came into effect in February 2011 and therefore it could not be applied to the grievor's situation retroactively.
In the matter of the incidental expense allowance the grievor received while on attached-posting, the Board noted that this allowance is a benefit governed by the CFTDTI; the Board also observed that the CFTDTI applies to all CF members on temporary duty and "while proceeding to and from an attached-posting location". In the Board's opinion, other than for travelling to or from the attached-posting, the CFTDTI does not apply to CF members on attached-posting in Canada. The Board found that the grievor received benefits to which he was not entitled. Furthermore, although CFTDTI benefits are no longer being paid to members on attached-posting in Canada, the Board noted that these benefits were paid to many CF members like the grievor, without authority, for the period from 1 August 2006 to 7 February 2011. The Board was also pleased to learn that the CF intended to prepare a remission order to be submitted to TB for those affected members.
The Board disagreed with the IA's conclusion that the grievor was not entitled to the meal allowance since he was provided rations from an American base. In the Board's opinion, when section 7.10 of the CFTDTI is read as a whole, it is clear that a CF member is entitled to reimbursement for the applicable TB meal allowance rates when a meal is not provided free of charge. In the case at hand, rations were not provided at public expense or by a third party and therefore, the Board concluded the grievor was entitled to his meal allowance at the applicable TB rate.
The Board recommended that the CDS deny the reimbursement of CE to the grievor.
In the matter of the incidental expense allowance paid to the grievor without authority, the Board recommended that the CF proceed with the preparation of the remission order in accordance with the information provided to the Board.
The Board also recommended that the CDS direct that the grievor be reimbursed for his meals in accordance with the TB approved rate.
CDS Decision Summary
CDS Decision Date: 2012–11–13
The CDS agreed with the Board to partially grant the grievance. The CDS agreed with the Board's finding that DCBA Aide-memoire had no legal basis as it was not approved by TB, which was confirmed by CANFORGEN 033/11. CBI 209.36 Custodial Expense, which now provides for reimbursement of CE for members attached-posted within Canada, came into effect only in February 2011. As for the incidental expense allowance received without authority, the CDS agreed with the Board's recommendation that the CF move forward with the preparation of a remission order to TB for CF members who were attached-posted during the period of 1 August 2006 through 7 February 2011. Since the grievor withdrew his grievance on the issue, the CDS did not review the grievor's entitlement to the meal allowance rates.