# 2012-029 - Release - Conduct/Performance, Release - Medical

Case Summary

F&R Date: 2012–06–28

The grievor, a Regular Force member, was released from the Canadian Forces (CF) under item 5(f) - Unsuitable for Further Service - of the table to article 15.01 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O). The grievor was released after a series of remedial measures failed to resolve his behavioral issues which, he argued, were caused by his medical condition. The grievor asked that his release item be changed to a 3(b) – Medical.

The issue before the Board therefore was whether the grievor was released under the most appropriate release item in accordance with the table to article 15.01 of the QR&O.

The decision maker in this matter, the Acting/Director General Military Careers (A/DGMC), acknowledged that the grievor did have medical issues that could warrant a medical release but concluded that the more appropriate release item remained 5(f). The A/DGMC noted that the grievor had also been deemed “disabled” which entitled him to receive the same immediate, indexed pension received by personnel medically released from the CF under item 3(b).

The Board first examined the administrative review (AR) process leading to the release decision and found that there was a breach of procedural fairness because the decision maker had not provided proper reasons for authorizing the compulsory release as was required by the applicable policy found under Defence Administrative Order and Directive 5019-2 – Administrative Review. As a result of this breach, the Board proceeded with a de novo review of the release item.

Using the policy guidance provided in the 4 July 2011 letter promulgated by the Chief of the Defence Staff (CDS) entitled “Consideration for Attribution of a release Item”, the Board examined and compared the grievor’s medical and performance histories. The Board found no evidence of the grievor’s behavioral problems prior to his exposure to an operational training accident at sea in which some CF members were injured. The Board also observed that the grievor’s reported performance had been progressing normally on a yearly basis until the year of the training incident when it clearly declined. Upon leaving the sea environment, the performance again improved for a period of three years. However, upon posting back to a ship, the grievor’s performance, as well as his behaviour, rapidly declined to unacceptable levels.

The Board concluded that, on a balance of probabilities, the grievor’s unacceptable behaviour while serving onboard ship was related to his now documented medical condition.

The Board recommended that the CDS grant the grievance and order that the grievor’s release item be changed from 5(f) to 3(b).

The Board also recommended that the CDS direct the release decision maker to provide proper reasons for authorizing compulsory release in accordance with the policy.

CDS Decision Summary

CDS Decision Date: 2013–11–21

The CDs did not agree with the Committee's findings and recommendations. The general consensus was that the grievor suffered from depression and had difficulty coping with stressful situations. The CDS found no evidence that the grievor was not responsible or aware of his unacceptable conduct and discipline issues which led to his release. Accordingly, the CDS was of the view that the decision to release the grievor under item 5(f) was appropriate based upon the situation.