# 2013-056 Releases, Component Transfer (CT), Compulsory Retirement Age (CRA), Release, Reserve Force

Case Summary

F&R Date: 2013–09–12

The grievor sought reinstatement in the Primary Reserve (P Res) effective the date that the Compulsory Retirement Age (CRA) changed from age 55 to age 60, alleging he was inappropriately released after two one-year extensions beyond his CRA of 55. The grievor complained that he had not been advised at the time his release was processed that he could have transferred to the Supplementary Reserve (Supp Res) where the CRA was then 65. He argued that, had he been so transferred, he could have transferred back to the P Res after CRA changed from 55 to 60 and thus been paid for the time that he served as an unpaid volunteer.

The Initial Authority, the Chief of Military Personnel, denied the grievance explaining that the grievor was not eligible to elect CRA 60 because it only became effective seven months after the grievor's release. He acknowledged the error in not offering the grievor the option to transfer to the Supp Res but explained that, once the oversight had been discovered, the grievor was enrolled into the Supp Res but there was no authority to back-date the enrolment.

The Committee noted that the Chief of the Defence Staff (CDS) has previously recognized, in a pay related grievance, that a Canadian Forces (CF) member is entitled to rely on specialist advice. The Committee applied this principle to the administration of the grievor's release, observing that the field of release administration has always been complex and was so when the grievor relied upon the expertise of the Regular Force unit Chief Clerk to successfully guide him through it. The Committee determined that the grievor was entitled to be correctly advised that he was eligible to transfer to the Supp Res and that his non-transfer was as a direct result of an error on the part of the responsible CF expert, the unit Chief Clerk. Accordingly, the Committee found that the grievor ought to have been transferred to the Supp Res at the time of his release from the P Res.

The Committee reviewed the circumstances surrounding the grievor's release and was of the view that the error on the part of the Chief Clerk was not of a nature that would invalidate the release; therefore, the Committee found the release to be lawful.

Lastly, the Committee examined whether the grievor could be paid for the time he volunteered his services following his release. The Committee was of the opinion that the grievor had suffered an injustice and that he could and should have been paid for his service but that, unfortunately, the CF could not cancel his release and back-date his transfer to the Supp Res.

The Committee recommended that the CDS deny the grievance and refer the file to the Director Claims and Civil Litigation with his support for compensation as a claim against the Crown.

CDS Decision Summary

CDS Decision Date: 2014–01–16

The CDS agreed with the Committee's findings and found that the grievor was aggrieved since he was not briefed about a potential transfer to the Supp Res. He also agreed with the Committee's recommendation that the grievance be denied, adding that the CAF has no authority to cancel a release and back-date a transfer. The CDS saw no need to refer the file to DCCL. The CDS added that even if the grievor would have likely transferred to the Supp Res upon his release, it did not necessarily mean that he would have been eligible to transfer to the P Res, nor that there would have been a P Res position or funding available at the time. Finally, the CDS indicated that he was unable to determine whether the grievor would have met the minimum operational standards at that time, in light of the grievor's medical condition during the same period.