# 2014-095 - Administrative Review Process, Release - Compulsory, Release - Conduct/Performance, Sexual Misconduct

Case Summary

F&R Date: 2015–02–20

The claimant was convicted of the assault and of the sexual assault of his former spouse. An Administrative Review (AR) was initiated and he was released under Item 2(a) for unacceptable conduct. He contested the decision on the grounds that the misconduct had taken place before his enrollment and that his conduct and performance as a military member had been satisfactory.

The Initial Authority (IA) raised a breach of procedural fairness in the case as the complainant had not been given the opportunity to provide comments during the AR. However, according to the IA, that breach had been corrected by the disclosure during the grievance process. The IA found that the complainant had been treated in accordance with the policy on sexual misconduct.

The Committee found that, given the importance of the decision for the complainant and the seriousness of the breach of fairness, the grievance process was not a sufficient of correcting the breach. The release was considered invalid and, as a remedy, the investigation would need to be redone and another decision made.

The Committee also noted that the AR and the IA did not follow the provisions of the Defence Administrative Orders and Directives (DAOD) 5019-5, Sexual Misconduct and Sexual Disorders, as it seemed that only the conviction and the sentence had been considered and not the other factors mandated in the analysis. However, further to its de novo review of the case, the Committee found that the only administrative measure to appropriately reflect the degree of incompatibility between the misconduct and the maintenance of military service was in fact the CAF member's release on the date of the new decision.

The Committee commented that paragraph 15.36(9) of the Queen's Regulations and Orders for the Canadian Forces does not provide an exemption from the obligation under DAOD 5019-2, Administrative Review, of giving a Notice of Intent to Recommend Release to any military member.

CDS Decision Summary

CDS Decision Date: 2015–07–07

The CDS disagrees with the Committee's conclusion regarding the grievor's release date, leading to the Committee's recommendation to release the grievor again under the same item. The CDS was of the opinion that the grievor was released in accordance with the applicable rules and regulations and that the breach of procedural fairness was remedied on several levels. The CDS agrees with the Committee's observation that the notice of intent to recommend release under IAW QR&O 15.36 breaches the principles of procedural fairness. Therefore, he requested that the provision be revised.