Administrative Review Process

Topic

Administrative Review Process

Case number

• 2011-115 (F&R Date: 2012–02–09)

Description

The grievor’s counseling and probation (C&P) for misuse of alcohol was quashed by the Chief of the Defence Staff (CDS) through a prior grievance submission.  Following alleged incidents relating to the abuse of alcohol while on a course, the grievor was returned to his unit (RTU) and a Progress Review Board (PRB) held in his absence.  The grievor’s Commanding Officer (CO) issued the grievor a notice of intent (NOI) to recommend release and the Director Military Careers Administration (DMCA) conducted an administrative review (AR) that recommended compulsory release.

The grievor challenged the AR in his response to disclosure on the basis that it contained reference to the quashed C&P, contained other unfounded and unsupported allegations and that the PRB decision on which the NOI was issued was procedurally unfair.  After reading the grievor’s comments, the CO amended his recommendation to retention on C&P.  The DMCA “approved” the AR release recommendation without providing written reasons as is required under Defence Administrative Order and Directive (DAOD) 5019-2 – Administrative Review.

The grievor argued that without the written reasons, there was no assurance that the DMCA had considered his representations or his CO’s revised recommendation and that the DMCA had not been influenced by inappropriate references to the quashed C&P remaining in the AR.

The Board found that the release decision must be set aside and a de novo review conducted because the DMCA had failed to provide a reasoned decision.  The Board further found that the AR and the PRB were both fatally flawed and must also be set aside.   Finally, the Board found that the breach of procedural fairness could not be cured through the grievance process and that the grievor’s release should be rendered void ab initio such that the grievor’s employment relationship with the CF had never ceased.

In a recent file [Board file 2010-071], the Board had recommended to the CDS that he forward to the DMCA a copy of the Board’s Findings and Recommendations outlining the manner in which the DMCA AR process was failing to follow the provisions of DAOD 5019-2.  In his grievance decision, the CDS agreed to do so.  In the course of investigating the present grievance, the Board sought to confirm that the DMCA had received the CDS decision.  However, the DMCA staff confirmed that no changes to the current DMCA AR process had been directed, nor were any being contemplated.

Conducting a thorough and fair AR process is essential to arriving at a fair and well-reasoned decision by the Release Approving Authority, the DMCA in this case. 

Recommendation

Given that the DMCA renders a significant number of release decisions each month, the Board recommended that the CDS direct the Chief of Military Personnel to take the necessary steps to put the DMCA AR process in compliance with DAOD 5019-2 as a priority.

Final Authority Decision

While he agreed that a more robust decision by DMCA would be helpful to properly explain the reasons for a decision in a succint format, the CDS was told that DMCA has begun amplifying these decisions to include  such explanations. Nevertheless, the CDS was not convinced that there was a systemic issue; within the decision letter, DMCA also referred to the AR and the conclusions therein. The CDS was satisfied that the current process adequately met the DAOD 5019-2 requirements.