# 2013-084 - Medical Employment Limitation (MEL), Obligatory Service (OS), Place of Duty , Release - Medical, Release...
F&R Date: 2014–02–20
The grievor sustained an injury during her Basic Military Qualification Course and subsequently requested a voluntary release, resulting in an obligation to repay the costs of her subsidized education. She argued she should have been granted a release for medical or compassionate reasons which would have eliminated the requirement to reimburse the costs of her subsidized education. She also questioned the requirement to repay her salary, and suggested that she should have been entitled to movement benefits.
The Initial Authority (IA) determined that the grievor had full access to medical services and that she was appropriately assessed. The IA also determined that the item of the release was correct and that the amount to be reimbursed was calculated correctly. Finally, the IA determined that the grievor was not entitled to receive movement benefits.
At the Committee's request, the Director Medical Policy (D Med Pol) reviewed the grievor's medical treatment and assessment and determined that the grievor was treated and assessed appropriately. In addition, D Med Pol noted that the grievor had occasionally refused treatment.
The Committee considered the evidence on file, the provisions of the Canadian Forces Publication 154 - Medical Standards (the applicable policy on medical releases and the universality of service principle), and the review provided by D Med Pol, and found that the grievor was not entitled to a release on medical grounds. Likewise, the Committee could find no evidence to support the grievor's assertion that she should have been released for compassionate reasons. Therefore, the Committee found that the grievor's voluntary release was appropriate.
The Committee agreed with the IA that the grievor was responsible to reimburse the costs of her subsidized education in accordance with the provisions of the Queen's Regulations and Orders for the Canadian Forces (QR&O) 15.07(2) and (3). However, the Committee did not agree that the grievor was obligated to repay the pay and allowances she received while attending her subsidized training. The Committee noted that QR&O 15.07(4) directs that pay and allowances must be reimbursed “… except for any period during which the member performed normal service duty …”. In a previous file, the Committee considered the issue of whether a member's attendance at a training establishment constituted being employed. In that case, the Chief of the Defence Staff (CDS) agreed with the Committee that the grievor had been employed and performing a duty while attending a training establishment. The Committee also noted that the Statement of Understanding, signed by the grievor on enrolment, clearly states “… that attendance at subsidized education training under the NCM-SEP is performance of a military duty …”. Therefore, the Committee found that the grievor was performing her military duty while attending her subsidized education program and thus receiving a salary for her normal service duty and should not be required to repay her salary.
Finally, the Committee reviewed the Compensation and Benefits Instruction 208.971(3), governing movement benefits, and found that the grievor was not entitled to movement benefits since she had not completed the required military training.
The Committee recommended that the CDS partially uphold the grievance by directing that the grievor only be required to reimburse the fees paid by the Crown to the educational institution attended by the grievor for her subsidized training.
CDS Decision Summary
CDS Decision Date: 2015–11–24
The CDS agreed with the Committee's recommendation and the grievance was partially granted. The CDS requested, and received, authority from the MND to reduce the grievor's debt to the Crown to these costs strictly related to her tuition and school fees. The CDS also agreed to reimburse the grievor for her access fee. The CDS agreed that the grievor was properly released 4c).
The CDS did not agree with the Committee's finding that only the tuition costs should be recovered since the grievor was carrying out her normal service duties while attending training. Attending the course must be included in the reimbursement calculation to give QR&O 15.07 4(b) its full effect. However, due to the grievor unique situation, and not compulsory release, the CDS found that it would be unfair to require the grievor to reimburse the salary received while undertaking subsidized training.
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