# 2012-043 Releases, Component Transfer (CT), Release - Compulsory, Release - Reserve

Case Summary

F&R Date: 2012–07–27

The grievor, a member of the Primary Reserve (PRes) on Class A service, was released under item 5(f) of the table to article 15.01 of Queen’s Regulations and Orders for the Canadian Forces (QR&O) “Unsuitable for Further Service” as a result of being declared non-effective strength (NES) by his unit. The grievor had requested a transfer to the Supplementary Reserve (Supp Res) and an exemption from duty and training (ED&T) prior to his departure from the unit. The grievor argued that all necessary paperwork was completed and that his transfer should have been completed as requested.

The issue to be determined was whether the grievor should have been transferred to the Supp Res as he requested instead of being compulsory released from the PRes.

The Commanding Officer (CO) acknowledged that the grievor requested a transfer to the Supp Res as well as ED&T but insisted that the proper procedures were not followed and that it was the grievor’s responsibility to do so. He concluded that without an approved ED&T covering the time that the grievor was absent from the unit, the grievor was NES and an item 5(f) release was appropriate.

The initial authority (IA), the superior of the grievor’s CO, found that the CO had the authority and was required by policy to initiate release procedures. The IA questioned the grievor’s claims regarding his application for transfer to the Supp Res and his request for ED&T approval, concluding that the unit should have declared the grievor NES some 14 months earlier as per regulations.

As a preliminary matter, the Board observed that the IA lacked the authority to grant redress in this case given that, by the time he rendered his decision, the 5(f) release had already been approved by the IA’s Level 2 superior. The Board found that the appropriate IA should have been the Chief of Military Personnel given that he is responsible to deal with the subject matter of the grievance.

The Board first considered whether the NES declaration was justified. The CO declared the grievor NES on the basis that there was no documented and approved ED&T on the grievor’s file although he acknowledged that the grievor had submitted his ED&T request through his chain of command (CoC). The CO and the IA both placed the blame on the grievor for failing to ensure his ED&T request was properly staffed and approved. However, the Board noted that the parent formation of the unit had a policy guiding the staffing of ED&T placing the onus on the unit to complete the staffing of the request once submitted by the grievor. The Board found that the unit failed to do so. Given that the grievor’s requests had been supported by his immediate CoC and forwarded to the unit support staff for action, the Board found it reasonable for the grievor to believe he had been transferred as he requested.

The grievor’s application was not processed through to an ultimate approval or denial by the unit nor was the grievor made aware that his requests had not been acted upon and that he was being considered to be absent without authority and thus NES. The unit insisted that reasonable attempts were made to contact the grievor but the Board found that, other than three NES letters, the first two of which did not reach the grievor, there was no evidence that any other attempts such as by e-mail or telephone were made. Once contact was made, the grievor indicated that he wanted to continue his military career but the CO continued with the NES declaration and the release recommendation. The Board found that the declaration of the grievor as NES was not reasonable and should not stand given that he had good reason to believe he had been transferred to the Supp Res and that he was unaware that he was considered to be NES.

The Board then considered whether the release decision was procedurally fair. The applicable policy for this matter is found in Canadian Forces Military Personnel Instruction (CF Mil Pers Instr) 20/04 which provides guidance for Reserve Force (Res F) employment and addresses the use of the NES declaration. Paragraph 3.12 indicates that a “member shall be declared NES when their unauthorized absence from duty has exceeded 30 days, during which time no fewer than three duty periods were conducted by the unit.” Further, “after unsuccessful attempts to encourage the member to once again become effective, the CO shall then initiate release proceedings under item 5(f)…”

Having found it unreasonable that the unit’s failure to process the grievor’s requests and to communicate with him should lead to his being declared NES, the Board also found that an item 5(f) release was not justified in this case.

Further review of the file also suggested that when deciding on the release of the grievor, the decision maker was not provided with all of the information required to ensure that the decision was an informed one. He was not informed that the grievor had: previously submitted a request to transfer to the Supp Res; submitted a request for ED&T; not received any type of notification that his aforementioned requests had been denied; responded to the final NES letter; explained the difficulties that he had been having with the redirection of his mail; indicated a desire to continue his career in the CF; and submitted a grievance prior to his release.

In fact, despite having more than enough time available to do so, the Board found that the grievor was released without the decision maker considering his explanation/submission and that this was contrary to the principles of natural justice, unfair and a fatal procedural flaw, sufficient on its own to nullify the release decision.

The Board recommended that the Chief of Defence staff uphold the grievance and direct that the grievor’s release item of 5(f) be changed to item 4(c), and that he be transferred or enrolled in the Supp Res effective the same date as his release.

CDS Decision Summary

CDS Decision Date: 2013–06–10

The CDS agreed with the Board's findings and recommendation that the grievance be upheld, the grievor's release item of 5(f) be changed to item 4(c), and that he be transferred or enrolled in the Supp Res effective the same date as his release.