# 2017-142 - Release - Compulsory, Release - Conduct/Performance, Release - Medical

Release - Compulsory, Release - Conduct/Performance, Release - Medical

Case Summary

F&R Date: 2018–02–27

The Director Military Career Administration (DMCA) conducted an administrative review (AR) for misconduct, as well as one for medical employment limitations (MEL). The DMCA concluded that, despite the grievor's medical condition, as he was able to distinguish right from wrong and understand the consequences of his actions, he had developed personal weaknesses that seriously impaired his usefulness and imposed an excessive administrative burden on the Canadian Armed Forces (CAF). The DMCA directed that the grievor be released from the CAF under item 5(f) - Unsuitable for Further Service. In addition, as the grievor's MEL were not compliant with the Universality of Service (U of S) principle, he was deemed medically disabled. The grievor argued that he was being released while he still required further treatment. He initially requested that his release be deferred until such time as his condition was adequately stabilized. In later representations, he requested that the assigned release item be changed from 5(f) to 3(b) - On medical grounds.

The Director General Military Careers (DGMC), acting as the Initial Authority (IA), found that the grievor was treated fairly and denied the grievance. The IA concluded that the decision to release the grievor was justified, and that the most appropriate item of release was 5(f), as it reflected the primary reason for the grievor's release; finding him responsible for his actions despite his medical condition.

The Committee found that DMCA and DGMC did not properly apply the Chief of the Defence Staff guidelines issued in 2011 for cases where both a medical condition and misconduct are present. The legal test of being able to distinguish right from wrong is nowhere to be found in those guidelines, which simply require determining whether there is a nexus between the medical condition and the misconduct, while assessing mitigating and aggravating circumstances in order to determine the appropriate item of release. The Committee recognized that the grievor became an administrative burden and that his condition could no longer be accommodated by the CAF. However, upon review of the grievor's file, the Committee found clear evidence that his misconduct had followed the pattern of the recognized symptoms of his medical condition. It also found a number of mitigating circumstances supporting that the appropriate item of release should have been 3(b).

The Committee recommended that Final Authority grant redress and change the grievor's release item from 5 (f) to 3(b).

FA Decision Summary

FA Decision Pending

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