Recommendations on Systemic Issues

Topic

Case number

Issue

The Board examined the entitlement to the Diving Allowance (DIVGA) while attached posted on a career-related course for over six months.  Under Compensation and Benefits Instructions (CBI) 205.34 – Diving Allowance, DIVGA is payable to a qualified diver who is posted into a position authorized by the Minister.  The CBI places no restrictions on the entitlement to the allowance when the entitled member is attached posted on a career-related course for over six months.  However, the DIVGA was denied to course attendees on that very basis using the provisions of Canadian Forces Administrative Order (CFAO) 205-25 – Environmental Allowances.

CFAO 205-25 paragraph 5 deems, for the purpose of that Order, that the term attached posting has the same meaning as the term posting.  CFAO 205-25, Annex F, paragraph 12 provides that the DIVGA ceases at the end of the day on which the member departs on posting from a designated position or unit.  Further, using CFAO 205-25 as a reference, Maritime Command Order (MARCORD) 205-1 – Navy Environmental Allowances (SDA, SUBA and DIVGA) reiterates those same provisions.  Thus, the administrative staffs have interpreted this to mean that a member who is attached posted is, for the purpose of this benefit only, posted out of the designated position and, therefore, no longer eligible for the DIVGA.

A-PM-245-001/FP-001 - Military Human Resources Records Procedures defines “Attached Posting” in two separate chapters as a temporary assignment where a member remains in their unit position and defines “Posting” as a means of transferring a member from one unit to another. 

The Board found that it is not open to the Chief of the Defence Staff (CDS), through the use of a deeming provision in an administrative order (CFAO 205-25), to disentitle members from a benefit to which they would otherwise be entitled pursuant to a regulation (CBI).  Similarly, it is not open to the Chief of the Maritime Staff to use MARCORDS for that same purpose.

Recommendation

The Board recommended that the CDS direct a review of the files of all CF members who attended the same course as the grievor or another EOD course at Eglin AFB and who were denied the DIVGA, in order to ensure that all attendees who were appropriately qualified and who were posted into a position authorized by the Minister receive the DIVGA.

The Board also recommended that the CDS direct a review of the DIVGA and other similarly affected environmental allowances and their administrative directions to ensure that the administrative directions do not serve to limit benefits authorized by the applicable CBI.

Final Authority Decision

The CDS did not agree with the Board's recommendation that the grievance be upheld. Based on the Environmental Allowances Study approved by TB, the CDS found that the grievor's exposure to the diving and water environment was interrupted by a course that exceeded six month in duration. Therefore, he was satisfied that the grievor was not entitled to DIVGA.

Although the Board was of the view that CBI 205.34 does not restrict the entitlement to the allowance when the member is attached posted on a career-related course for over six months, the CDS did not agree with the Board's systemic recommendation that a review be conducted to ensure that the administrative directions do not limit benefits authorized by the applicable CBI.