eBULLETIN - January 2016

Contents

Highlights

Case Summaries

Statistics

Mailing List

See our Case Summaries List or Systemic Recommendations for further information about recent and past MGERC cases.

Highlights

Paying Rations and Quarters while on Training (case no. 2014-209)

The grievor got married while she was attending a qualification course. After a maternity leave, she was required to restart her course and was being charged for rations and quarters. She contended that paying for rations and quarters while having to maintain a principal residence elsewhere caused her undue financial hardship.

Medical Condition and Release Motive (case no. 2015-019)

The grievor contested her release after the Canadian Armed Forces concluded that a health episode she experienced while on a qualification course was the result of a pre-existing condition that she failed to disclose upon her enrolment.

Change Next of Kin Designated for Leave Travel Assistance Purposes (case no. 2015-026)

The grievor, a single military member with no dependents, was denied Leave Travel Assistance (LTA) to visit his sister because his mother was still alive. He contested the decision based on the fact that he had been authorized a few years earlier to designate his sister as Next of Kin for the purposes of the LTA, after his mother expressed her intention to move abroad with no fixed address.

Case Summaries

Paying Rations and Quarters while on Training

Committee Findings and Recommendations

At the time of her component transfer to the Regular Force, the grievor was single without dependants. She was posted to attend her Qualification Level 3 (QL3) course and the move of her household goods and effects (HG&E) was prohibited. While on training, she married a service member and became pregnant. She ceased training shortly before the end of the course in light of her medical employment limitations. After completing her maternity leave, she returned to resume training, leaving her child with her service spouse, who had since been posted to the same location where the grievor resided when she was transferred. As the course curriculum had changed, it was decided that she had to redo the QL3 from the beginning. While on training, the grievor's move was again prohibited and the grievor was charged for rations and quarters (R&Q).

The grievor contended that having to pay for quarters while on training at the same time as having to maintain a principal residence elsewhere caused her undue financial hardship. She argued that her situation was exceptional, considering the reasons that led to a significant delay in completing her basic occupational training. She considered that her situation warranted remission of charges for R&Q under the authority of the Chief of the Defence Staff (CDS).

The initial authority (IA) concluded that the grievor was not entitled to a remission of charges for quarters or for rations as she did not meet the criteria for separation expense (SE).

The Committee agreed with the IA regarding the ineligibility of the grievor to SE. However, the Committee noted that it was not what the grievor was seeking and that remission is not intrinsically linked to SE. The Committee considered that the grievor had to maintain suitable accommodation for her child as it was impossible to do so in single quarters. The Committee also noted that the Canadian Armed Forces had since posted her service spouse to the location where her HG&E had been stored and it was logical that they would establish a principle residence at that location. Given the circumstances, the Committee considered that it was unreasonable to charge the grievor for quarters.

The Committee's position has always tended towards delinking rations from quarters. As such, the Committee considered that it was reasonable to charge the grievor for rations.

The Committee also examined how the grievor's file was handled and found that the training establishment disregarded the previous decision to recognize performance objectives already achieved, as well as the previous Commandant's decision that the grievor needed only to complete certain objectives to be qualified. The Committee concluded that the training establishment's decision to require the grievor to redo the entire course was arbitrary.

The Committee concluded that the grievor was aggrieved and recommended that the CDS remit the charges for quarters.

Final Authority Decision

While the final authority (FA) agreed with the Committee that the grievor has been aggrieved, it did not agree with the remedy. The FA agreed that upon a strict interpretation of the Compensation and Benefits Instructions the grievor did not qualify for SE (and potentially free R&Q), but elected to fix the problem that disturbed the proper administration of the grievor's career and benefits. Therefore, the FA ordered that the grievor's situation be changed back in 2011 by amending her posting messages. These changes allowed the grievor to be entitled to SE benefits for the period in question.

Medical Condition and Release Motive

Committee Findings and Recommendations

During the grievor's basic military qualification course, she suffered an episode of loss of consciousness. She was returned to full duty two weeks later and completed the course.

Her medical file was reassessed several months later and it was determined the she had experienced an epileptic seizure and likely suffered from a medical condition that was not compliant with the Universality of Service principle. It was also determined that the condition was pre-existing but had not been disclosed. The grievor was released under item 5(e) - Irregular Enrolment.

The grievor argued that item 5(e) cannot be the appropriate release item because the condition was not determined within ninety days of her enrolment and she was never diagnosed with the medical condition prior to her enrolment, thus the conclusion that the condition was pre-existing is speculative.

The initial authority (IA) concluded that the grievor knew she had the pre-existing medical condition based on incidents from her childhood that she recollected when her file was reassessed. The IA also contended that the seizure happened within two weeks of her enrolment, which qualified the grievor for a release under item 5(e).

The Committee considered that there was no formal diagnosis of a pre-existing medical condition. The medical documentation related to the incidents that occurred in her childhood does not even consider the possibility of such a condition. Thus, the Committee highlighted the fact that the grievor could not have disclosed information regarding a pre-existing condition that was not known or diagnosed prior to her enrolment. The Committee also noted that the conclusions of the specialist in that regard were more a statement of impressions made 10 years after the fact rather than a definitive diagnosis. The Committee also noted that the grievor was returned to full duty without any medical employment limitations two weeks after the incident occurred and successfully completed her basic training. She was only assigned medical employment limitations several months after the incident. Finally, the Committee noted that it took more than three years after the specialist's assessment to arrive at a release decision, which is inconsistent with other examples of an irregular enrolment where the release would occur shortly after the information is first discovered.

For these reasons, the Committee recommended that the Chief of the Defencse Staff (CDS) change the release item from 5(e) to 3(b) – Medical.

Final Authority Decision

The CDS agreed with the Committee's findings and recommendation that the grievor's release item be changed from 5(e) to 3(b).

Change Next of Kin Designated for Leave Travel Assistance Purposes

Committee Findings and Recommendations

The grievor, a single military member with no dependents, sent a memo entitled Request To Change Next of Kin (NOK) for Leave Travel Assistance (LTA) to his Commanding Officer (CO). The grievor explained that his mother had sold her home and purchased a recreational vehicle with the intent to permanently travel in the United States. Since she would have no fixed address, he was led to believe he may have difficulties if and when he attempted to claim LTA benefits. He identified his sister on the NOK form for LTA purposes. A few years later, before a visit to his sister, the grievor prepared and submitted a LTA claim form to the Unit Orderly Room (OR) and received an advance in the amount of $1,675.00. When he attempted to finalize his travel claim, he was informed that he was not entitled to claim LTA expenses for visiting his sister because his mother was still living. The full amount of the advance was then recovered. The grievor contended that it was unfair to deny his claim because he had received prior authorization from the CO to change his NOK for LTA purposes. He also pointed out that the clerk who gave him the advance of funds failed to verify his entitlement to LTA or detect any errors and, as such, he maintained that he was misled and had been provided with incorrect information.

The initial authority (IA), the Commander 4^th Canadian Division Support Group, denied the grievance, stating that Compensation and Benefits Instructions (CBI) 209.50(2) clearly defines family member. The IA found that the grievor did not meet the eligibility criteria for LTA since he could not substitute his sister for a living parent. The IA also noted that no CO has the authority to designate an alternative family member for LTA purposes. On the issue of the NOK form, the IA explained that the Canadian Armed Forces uses this form in the event of death, serious injury or illness and, as such, several relatives can be listed; therefore, the form is not used to determine eligibility for LTA.

Based on the CBI 209.50(2) definition of family member, and given that the grievor's mother was still living, the Committee agreed with the IA that the option to designate his sister as his family member for LTA purposes was not open to the grievor. The Committee found that the grievor was not entitled to claim LTA expenses when he visited his sister. Further, because the grievor had prepared his own claim form and submitted it directly for an advance, thus negating the opportunity for a review by the OR clerks, the Committee found that the grievor had not been misled to his detriment in the matter. The Committee concluded that recovery of the overpayment was justified and recommended that the grievance be denied.

Final Authority Decision

The final authority agreed with the Committee's findings and recommendation that the grievance be denied.

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