# 2014-097 - Administrative Action, Release - Conduct/Performance, Sexual Misconduct

Case Summary

F&R Date: 2014–11–28

The grievor was released from the Canadian Armed Forces (CAF) under item 2(a) - Unsatisfactory conduct, after being convicted under the Criminal Code of Canada for possessing child pornography.

The grievor sought to have his compulsory release cancelled, arguing that his Administrative Review did not address his employability within the CAF and gave little weight to the retention recommendations from his chain of command. The grievor sought to have his compulsory release cancelled. In the alternative he requested that he be allowed to take a voluntary release which would allow him to receive the Canadian Forces Severance Pay (CFSP). The grievor also requested that the decision to forfeit his medals be cancelled and that they be returned to him.

The Initial Authority (IA), the Director General Military Careers denied the grievance having determined that the grievor's release under item 2(a) of the Table to article 15.01 of Queen's Regulations and Orders for the Canadian Forces was policy compliant and appropriate.

The Committee found that the Director Military Careers Administration's (DMCA) decision to release the grievor under item 2(a) was not policy compliant as the explicit test set out in Defence Administrative Orders and Directives (DAOD) 5019-5, Sexual Misconduct was not applied correctly. The Committee therefore concluded that the DMCA decision should be set aside.

The Committee reviewed the grievor's situation from the beginning utilizing the DAOD 5019-5 criteria. The Committee compared the grievor's case with his personal circumstances, his military career, the nature of the offence (possession of child pornography), the actions taken by the Chief of the Defence Staff (CDS) in similar cases and jurisprudence.

Considering the most appropriate administrative action that best reflected the degree of incompatibility between the seriousness of the grievor's sexual misconduct and his continued military service, the Committee found that the degree of incompatibility between the grievor's sexual misconduct and his continued service in the CAF was not sufficient to justify his compulsory release and that he should have been placed on Counselling and Probation (C&P).

The Committee also disagreed with the CDS decision to order the forfeiture of the grievor's medals. The Committee observed that, under QR&O 18.27(2), the forfeiture of medals under an item 2(a) release is discretionary and found that the Director Honours and Recognition (DH&R) recommendations did not take into consideration the grievor's entire circumstances. The Committee found that the grievor's decorations and medals should be restored since he received them during periods of honourable service and that his sexual misconduct happened subsequent to their being earned.

With regard to the CFSP, the Committee noted that Compensation and Benefits Instructions (CBI) 204.40(7) provides that the CFSP is not payable under an item 2(a) release if the release is approved during eligible service. The Committee also noted that, in accordance with QR&O 15.01(3), the authority to release an officer other than an officer cadet rests with the Governor General. In the grievor's case, since his release date preceded the Governor General's approval by almost seven months, his release was not approved during his eligible service. Therefore, the Committee found that the grievor is entitled to the CFSP.

The Committee recommended that the grievor's release under item 2(a) be cancelled. In the alternative, the release should be changed to a voluntary release.

The Committee recommended that, if the item 2(a) release could not be cancelled or if the release item was not changed to voluntary, the grievor be offered re-enrolment in the CAF and that he be placed on C&P.

The Committee recommended that the grievor's medals and decorations be restored.

The Committee recommended that the grievor be paid the CFSP for his eligible service.

CDS Decision Summary

CDS Decision Date: 2015–12–04

The CDS partially agreed with the Committee's findings and recommendations. Like the Committee, the CDS addressed each criteria of DAOD 5019-5, but he did not agree with most of the Committee's findings for them. Therefore, the CDS did not agree with the Committee's overall finding that the degree of incompability between the grievor's sexual misconduct and his continued service in the CAF was not sufficient to justify his compulsory release. The CDS found that an item 2(a) release was appropriate in the circumstances. The CDS partially agreed with the Committee's finding that the grievor's decorations and medals be restored since he received them during periods of honourable service and that his sexual misconduct happened subsequent to them: the CDS was of the view that the criteria to be considered for medal forfeiture is whether the CAF member has been convicted by a civil authority of a serious offence as per QR&O 18.27. But since the medals were received before the sexual misconduct happened, the CDS agreed with the Committee's recommendation that the grievor's medals and decorations be restored except for the First Clasp.