# 2017-002 - Release, Release - Benefits, Release - Medical, Release - Reserve

Case summary

F&R Date: 2017–07–05

The grievor was granted a voluntary release from the Regular Force (Reg F) in order to transfer to the Primary Reserve (P Res). During his release medical, a pre-existing condition was noted and resulted in the Director Medical policy (D Med Pol) assigning permanent Medical Employment Limitations (MEL) in breach of the Universality of Service principle, several months after the grievor's release from the Reg F. It also resulted in a decision to release him from the P Res under item 5(e) – irregular enrolment, later changed to item 3(b) – on medical grounds. The grievor had already completed 30 months of a period of Class “B” Reserve Service by the time the decision to release him from the Canadian Armed Forces (CAF) took effect. The grievor argued that the delay in assigning his MEL and rendering a decision on his release prevented him from receiving the transitional services and benefits associated with a medical release from the Reg F to which he should have been entitled. He requested to be retroactively released from the Reg F under item 3(b), that he receive the transitional services and benefits applicable to a 3(b) release and that his 30 months of service in the P Res be disregarded in the calculation of his benefits.

The Initial Authority (IA) denied the grievance finding that the nexus of the grievor's release from the Reg F was not medical but voluntary and that he could have withdrawn his request had he felt a release on medical grounds was warranted at the time. The IA noted that the delay in determining the appropriate item of release was uncommonly lengthy, but was due to the uniqueness of the grievor's case. He also found that decision to amend the P Res release item from 5(e) to 3(b) was appropriate in the circumstances. For the last item of release to be 3(b) from the Reg F, it would require the CAF retroactively grant the grievor a period of accommodation in the Reg F of three years, which the IA found was neither possible, nor justified.

The Committee agreed that the item of release must reflect the reason for release at that time and not aim to provide specific benefits. While it factually remains that the grievor's release from the Reg F was in order to transfer to the Reg F, thus voluntary, the Committee found that the grievor had a well-documented medical condition that warranted MEL be imposed at least three years before his voluntary release from the Reg F. The inadequate administration of the grievor's medical condition prevented his case from being assessed in a timely manner and his MEL would have most likely prevented his transfer to the P Res and resulted in a release from the Reg F under item 3(b). This would have been a major consideration in his decision had this information been known to the grievor. For this reason, the Committee found that, in the very unique circumstances of this case, the appropriate item of release from the Reg F should be amended to 3(b). Consequently, the item of release from the P Res would also have to be changed to 5(e).

The item of release and the component in which CAF members are serving at the time of their release from the CAF impact on the benefits to which they may be entitled. While the Queen's Regulations and Orders for the Canadian Forces allow the Chief of the Defence Staff (CDS) to change the item after the effective date of release, the regulatory framework governing these benefits generally does not provide for cases where the CAF do so many months, if not years after the fact. As a transfer to the P Res requires that a CAF member first release from the Reg F, the Committee stated that the CAF must ensure a more efficient process for dealing with cases where a preexisting medical condition that could lead to a change of release item to 3(b) is noted during the release medical exam in order to avoid such complications as those faced by the grievor in the case herein. The Committee concluded that the delay in properly administering the grievor's circumstances was entirely attributable to the CAF and had to be taken into account. Nevertheless, the grievor's earnings in his 30 months of employment in the P Res could not be disregarded in determining the transition services and calculating the amount of benefits to which he may be entitled.

The Committee recommended that the CDS:

• Find that the appropriate item of release from the Reg F is 3(b) and from the P Res is 5(e);

• Deny the grievor's request for financial compensation; and

• Send letters to managers of the service and benefits programs in question to explain the circumstances for their consideration within the applicable policy framework.

FA decision summary

The Final Authority (FA) agreed with the Committee.