# 2012-110 Releases, Release - Compulsory

Case Summary

F&R Date: 2012–11–23

The grievor was released under item 5(d) - Not Advantageously Employable, of the table to article 15.01 of the Queen's Regulations and Orders for the Canadian Forces (CF) after he was returned to unit (RTU) twice from his basic military occupation course. The first RTU was as a result of having failed two performance checks and the second after it was determined that he committed academic misconduct (plagiarism). The grievor had also been awarded a recorded warning for conduct deficiencies while awaiting to be re-coursed and was placed on counseling and probation for lack of judgement as a result of the academic misconduct.

The grievor argued that his file should be sent for medical assessment in order to determine whether a release under item 3(b) - Medical, would be more appropriate. He also submitted that the release decision was unfair. As redress, he requested that his release be held in abeyance until the release item was confirmed.

In reviewing the grievance, the initial authority (IA) requested some clarification on the grievor's medical condition, specifically the effect that it would have had on his conduct and behaviour. The medical staff indicated that the grievor's condition may cause mild to severe symptoms; however, it was also noted that since the grievor had a university degree and almost ten years of previous military Reserve service, it was more likely that the grievor suffered from mild symptoms. The IA also inquired with regard to a psychologist report submitted by the grievor which stated that the medical condition could account for some of the grievor's errors in judgement; the response was that although the condition likely contributed to a certain extent, it was not responsible for lying or plagiarizing nor for the grievor being unable to meet physical fitness standards. The IA concluded that a 5(d) release applied to the grievor due to his inherent lack of ability to meet military classification or trade standards and denied the grievance.

Upon review of all materials on file, the Board was of the view that the mere fact the grievor failed in two attempts at classification training was, on its own, sufficient to justify release under item 5(d). The Board agreed with the IA that the grievor lacked the ability to meet any military classification or trade standards and had personal weaknesses that seriously impaired his usefulness to the CF. As well, the Board was satisfied that the medical opinion obtained by the IA was dispositive of the argument advanced by the grievor that his medical condition was the source of his problems.

In the Board's opinion, an item of release is meant to represent the primary reason for release, which was due to the grievor's inability to pass basic military classification training on two separate occasions. The Board found that the 5(d) release item was reasonable and justified in the circumstances.

The Board recommended to the Chief of the Defence Staff that he deny the grievance.

CDS Decision Summary

CDS Decision Date: 2013–06–24

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