# 2016-072 - Release - Conduct/Performance

Case Summary

F&R Date: 2016–08–09

The grievor had several conduct deficiencies that led to remedial measures and disciplinary actions taken against him during his career in the Canadian Armed Forces.

The grievor disagreed with the Director Military Careers Administration's decision to release him under item 5(f) – Service Completed - Unsuitable for Further Service, of the table to article 15.01 (Release of Officers and Non-Commissioned Members) of the Queen's Regulations and Orders for the Canadian Forces (QR&O), with the annotation “Disabled”. He argued that during four years, he had conducted himself in a manner “above and beyond what that specific QR&O requires…”. As redress, he is sought an amendment to the release item from 5(f) to 3(b) – Medical.

The Initial Authority found that the grievor was treated according to policy and denied the grievance. Based on the opinion of the Head Medical Policy and Standards (Med Pol & Stds), he explained that the grievor was aware of the nature and consequences of his actions despite his mental health diagnosis. In his view, the primary reason for the grievor's release was his misconduct.

The Committee considered the factors detailed in Defence Administrative Order and Directive 5019-2 (Administrative review) and in the Chief of the Defence Staff (CDS) directive titled “Consideration for attribution of a release item”, in order to determine whether the grievor should have been released as a consequence of his medical situation or his misconduct.

The Committee noted that prior to the absent without leave (AWOL) incident; the grievor had a clean slate for almost four years. Considering this achievement and the fact that his performance was evaluated as superior, the Committee found that releasing the grievor under item 5(f), with or without the annotation, “Disabled”, was inappropriate.

The Committee also noted that the grievor had a permanent medical category and medical employment limitation that breached the universality of service principle. While acknowledging having no expertise in the field, the Committee found that the available medical information all point to the grievor's medical conditions having an effect on daily life, making it difficult to meet major responsibilities at work, school, or home.

In light of the evidence, including the Head Med Pol & Stds' opinion and the nexus in time between the flare-ups in the grievor's mental health symptoms and his misconduct, the Committee found that on a balance of probability, the grievor's medical condition did play a certain causative role in his unacceptable behavior.

Finally, the Committee found that the release authority did not make a judicious use of the process provided by the CDS for attributing a release item. The fact that the grievor knew what he was doing, should have nothing to do with the release item. In fact, had the grievor not been AWOL, he would have otherwise been released 3(b).

The Committee recommended that the grievor's release item be changed to 3(b).

FA Decision Summary

The CDS agreed with the Committee's finding that the decision to release the grievor under item 5(f) with the annotation "Disabled" for misconduct was unreasonable. The CDS agreed with the Committee's recommendation that the release item be changed for 3(b).