Improper Administration of SE through an Aide-Memoire

There are 4 issues related to topic "Improper Administration of SE through an Aide-Memoire".

Topic

Improper Administration of SE through an Aide-Memoire

Case number

• 2009-018 (F&R Date: 2009–09–14)

Description

The grievor married a foreign national while on posting outside Canada. Because of immigration requirements, the spouse could not immediately return to Canada with the grievor. The grievor was authorized free rations and quarters by his unit, as part of separation expense (SE) benefits. Months later, the grievor was informed that he was not entitled to SE and was asked to reimburse the amount received.

The Board observed, in this case, that the administration of SE was improperly done through the Director Compensation and Benefits Administration Aide-Memoire instead of the CBI 209.997. The Board was aware that the DCBA was seeking proper Treasury Board (TB) authorization to publish its Aide-Memoire as the approved regulations on non-relocation benefits. Given the number of inconsistencies noted between the different documents applicable to the administration of SE (CBI, Aide-Memoire and CANFORGEN), the Board felt that an in-depth review was required to minimize future issues of interpretation and application.

Recommendation

The Board recommended that the Chief of the Defence Staff direct an in-depth policy review and that representation be made to the TB regarding the SE benefits, in order to clearly address SE entitlements or ineligibilities, through proper regulations.

Final Authority Decision

The CDS did not explicitly indicate that he agreed with the Board's systemic recommendation on the inconsistencies between the Aide-Memoire and the CBI regarding the SE. However, the CDS acknowledged the inconsistencies in the current grievance, indicating that the issue was raised in previous cases and was with DGCB for review.

Topic

Improper Administration of SE through an Aide-Memoire

Case number

• 2009-045 (F&R Date: 2009–10–20)

Description

The grievor was a divorced member with a Court approved 50/50 shared custody arrangement for his children when he was posted from Halifax to Ottawa on an imposed restriction (IR) and, therefore, granted separation expense (SE).

Prior to authorizing the IR, the grievor's 50/50 shared-custody status had been discussed with the Director Military Careers (D Mil C) and both legal and Director Compensation and Benefits - Administration (DCBA) opinions had been sought. As a result, the D Mil C directed that, as long as the grievor could demonstrate the 50/50 shared custody arrangement, an IR could be authorized; it was.

Thirteen months after the grievor reported for duty in Ottawa, the DCBA explained that the grievor was not entitled to an IR or the SE because his children did not live with him full-time as set out in the DCBA 3 Aide-Memoire.

The initial authority, the Director General Compensation and Benefits (DGCB) recognized that the term "normally resident" found in the Compensation and Benefits Instructions (CBI) 209.997 could be misinterpreted but that the DCBA 3 Aide-Memoire was clear that the grievor's children had to be resident with him on a full-time basis.

The Board noted that the DCBA 3 Aide-Memoire explained that it modified the SE benefits based on Treasury Board (TB) approval in principle. The Board found that the full-time residency requirement of the DCBA Aide-Memoire went beyond amplifying the CBI and, in fact, placed limits on the benefits authorized by the TB; something that, in accordance with sections 12 and 13 of the National Defence Act, it cannot do without formal approval from the TB.

The Board observed that, in addition to this grievance, there had recently been other grievances where the DCBA 3 Aide-Memoire had been used to place limits on benefits approved by the TB.

Recommendation

The Board did not disagree with the DCBA intent to limit the SE to those members with full custody. However, the Board recommended that the Chief of the Defence Staff direct an in-depth policy review and make representation to TB with a view to clarifying SE to clearly address entitlements and eligibilities through appropriate regulations. The Board also recommended that the review address the situation of those members with shared custody arrangements.

The Board recommended that the CDS ensure that clear direction is issued to DCBA and the IR approval authorities regarding the circumstances under which an IR and associated SE benefits may be approved.

The Board recommended that the CDS direct that the practice of making changes to TB authorized regulations before formal approval should be discontinued.

Final Authority Decision

The CDS agreed with the Board that the DCBA Aide-Memoire went beyond amplifying the CBI and, placed limits on the benefits authorized by the TB. However, the CDS did not address the Board's other systemic recommendations in his decision to the grievor.

Topic

Improper Administration of SE through an Aide-Memoire

Case number

• 2012-002 (F&R Date: 2012–03–21)

Description

While on imposed restriction (IR), the grievor was authorized to secure an apartment because no military accommodation was available.  He was advised verbally by the Base Orderly Room that the monthly entitlement for separation expense (SE) benefits at his new place of duty was $1,800, and he subsequently incurred SE expenses based upon that advice.

Approximately a year later, staff at the Director Compensation and Benefits Administration (DCBA) determined that the grievor had received SE benefits in excess of the DCBA authorized national monthly rate of $1,090.   Consequently, the grievor saw a reduction in his SE rate from $1,800 to $1,090 and, ultimately, the SE benefits that were deemed to have been overpaid were recovered from the grievor.  The grievor submitted his grievance, arguing that any overpayment was the result of an error not of his doing.  He sought remission of his debt as redress to his complaint.

Article 209.997 of the Compensation and Benefits Instructions (CBI) provided a formula for determining the maximum SE amount payable to Canadian Forces (CF) members on IR for lodging, meals and incidental, and parking.

In October 2008, DCBA had issued an “Aide-Memoire” purporting to set the maximum monthly ceiling on SE entitlements at a national rate of $1,090 for all locations not otherwise specified.  The Board noted that although the CBI are called “Instructions”, they are, in fact, formal policy documents and regulations promulgated by Treasury Board (TB) on the “pay, allowances and reimbursements” of  CF members.  Moreover, the Board observed that the Minister of National Defence did not have the power to make regulations pertaining to any matter concerning pay, allowances or reimbursement of expenses of officers and non-commissioned members as this authority rests exclusively with the TB.  The Board then reviewed the relevant sections of the “Aide-Memoire”, in particular the maximum allowable monthly SE benefits, and determined that they were inconsistent with the TB regulation as provided by CBI article 209.997, which sets out a formula for determining the maximum SE amounts payable for lodging, meals and incidental, and parking.

Consequently, the Board found that the elements of the DCBA “Aide-Memoire” not consistent with the CBI should not have been relied on by the CF to administer SE benefits.  An audit was therefore required for the grievor and all members entitled to SE at the Canadian Forces Base (CFB) in question and who were similarly affected by the improper imposition of the maximum monthly SE rate promulgated in the DCBA “Aide-Memoire.”

The Board also found that, effective 1 February 2011, article 209.997 of the CBI was effectively superseded by the TB approval of Canadian Forces Integrated Relocation Program, Chapter 15, Annex A.  Annex A once again promulgated a national maximum monthly SE rate for all locations not otherwise specified therein.  This TB approved SE rate was established at $1,090, the rate first promulgated by the DCBA in 2003.  This rate was further confirmed on 12 January 2012, with the coming into force of CBI article 208.997.

Given the passage of several years since the national $1,090 SE rate was first promulgated, the Board considered it a strong possibility that the recommended audit, employing a calculation based on CBI article 209.997, would generate a new monthly SE rate higher than $1,090.  In this event, the Board was of the opinion that it would be appropriate for the resultant monthly SE rate to become the new TB approved SE rate for the CFB in question.

Recommendation

The Board recommended that the Chief of the Defence Staff direct that an audit re-calculate the SE rate for all CF members who were entitled to SE at the CFB in question prior to 1 February 2011 and who were similarly affected by the improper imposition of a maximum rate. 

The Board also recommended that TB approval be sought to designate the new SE rate calculated by the audit to become the new approved SE rate for the CFB in question.

Final Authority Decision

The CDS agreed with the Board' systemic recommendation that the monthly SE rate for locations other than those listed  in the table to the CBI needed to be updated to reflect the increased costs of accommodations. Therefore, the CDS directed DGCB to update the monthly SE rate for those locations, as well as to conduct a review of the various SE accommodation rates and ensure that the table of rates contained in CBI 208.997 is up to date.

The CDS did not address the Board's systemic recommendation that the SE be re-calculated for all members at the Base in question prior to 1 February 2011 who were entitled to SE and were similarly affected by the improper imposition of a maximum rate.

Topic

Improper Administration of SE through an Aide-Memoire

Case number

• 2012-009 (F&R Date: 2012–03–26)

Description

The grievor transferred from the Regular Force (Reg F) to the Primary Reserve (P Res) after 34 years of Reg F service for which he had collected the maximum 30-year severance pay.  Following a period of P Res service, the grievor was released from the Canadian Forces (CF) under item 5 (a) (Service Completed, Retirement Age) to the Table to article 15.01 of Queen’s Regulations and Orders for the Canadian Forces.

The grievor was denied the Reserve Force Retirement Gratuity (RFRG) benefit on the basis that he had already received the maximum 30-year Reg F severance pay benefit.  However, the grievor argued that Compensation and Benefits Instructions (CBI) 204.54 (RFRG) did not preclude his receiving the RFRG in addition to the maximum Reg F severance pay.

A plain reading of the current and original (1997) versions of CBI 204.54 did not reveal any provision that would deny a reservist the RFRG to which they are entitled based on their P Res service, even though the combined total of the severance pay and RFRG benefit may exceed the maximum of 210 days for 30 years of service provided for in each of CBI 204.40 and 204.54 respectively.

Treasury Board (TB) staff acknowledged that, prior to a July 2011 TB decision revising the relevant CBI effective 1 October 2011, there was no bar to a reservist collecting the RFRG in addition to a maximum 30-year severance pay for those P Res members released under the CBI in effect prior to 1 October 2011.

The Board was concerned that, since 1 April 1997, a number of reservists may have been wrongly denied the RFRG benefit based on their combined Reg F and P Res service having exceeded 30 years.

Recommendation

The Board recommended that the Chief of the Defence Staff direct that similar grievances that are outstanding be upheld administratively, along with any administrative inquiries from eligible released former P Res members.

Final Authority Decision

Because of an informal resolution, the systemic recommendation was left unanswered.