Case # 2009-019

Administrative Review, Cease-Training, Claims against the Crown, Course failure, Military occupation (MOC), Natural Justice, Occupational transfer (OT), Progress Review Board (PRB), Release - Compulsory, Release date, Relinquishment of rank

Case Summary

F&R Date: 2010-03-31

The grievor was recommended for occupational reassignment by a Training Review Board after he failed a component of his occupational training. Accordingly, the grievor worked with his Base Personnel Selection Officer (BPSO) over the next 13 months, attempting to select an occupation for reassignment. At one point, the grievor's file was sent to a selection board for an officer occupation that was of interest to him, but he was not selected for that occupation. Subsequently, he was offered the opportunity to transfer to a non-commissioned member occupation. He declined the offer. The grievor was not interested in any of the other officer occupations that were available to him, and consequently, the grievor's Commanding Officer (CO) recommended that his release be considered. Following an administrative review (AR), the Director Military Careers Administration and Resource Management approved the grievor's release, and the grievor was released under item 5(d) of the table to Queen's Regulations and Orders (QR&O) article 15.01.

The grievor submitted a grievance alleging that his reassignment process had not been conducted appropriately, his release was improper and not procedurally fair, and he had been improperly detained at the training centre where he was posted. In particular, he alleged that he had not been given appropriate access to officer occupations, that relinquishment of commission could not be imposed upon an officer, and that his CO had not complied with the obligation under the QR&O 15.21 to provide a Notice of Intent (NOI) to recommend his release. As redress, the grievor requested that he be allowed to apply to a broader spectrum of officer occupations and that his release item be reviewed and a 4(c) release be considered. The grievor made additional submissions in the course of the grievance process, which raised some further issues.

The initial authority (IA) denied the grievance, indicating that the grievor had not proven his claims. The IA found that there had been no career option other than release for the grievor and that the release process had been procedurally fair. The IA also indicated that item 5(d) had been the correct release item.

The Board reviewed the grievor's matter and noted that the grievance issues were those that had been raised in the initial grievance. With respect to the IA's finding that the grievor held the burden of proving his claims, the Board indicated that pursuant to QR&O 7.04(2) and the Canadian Forces Administrative Orders 19-32 the grievor was responsible for substantiating his grievance.

The Board found that the grievor had not demonstrated that his reassignment process had been conducted inappropriately and found the grievor's release had been proper and procedurally fair, and the 5(d) release item had been correct. The Board noted that relinquishment of commission had not been imposed on the grievor; rather the grievor had been offered the opportunity to relinquish, which was fully permissible pursuant to QR&O 11.12. The Board found that the grievor's CO should have provided a NOI pursuant to QR&O 15.21 when he recommended the grievor's release, but found that this did not render the release process unfair given that the grievor had not had any career options at the time of the recommendation and given that the grievor was provided with disclosure and the opportunity to respond during the AR process prior to his release. The Board found that there was no evidence that the grievor had been improperly detained.

The Board recommended that the grievance be denied.

CDS Decision Summary

CDS Decision Date: 2010-09-15

The CDS agreed with the Board's findings and its recommendation to deny the grievance. The CDS added that while the grievor's release process was not conducted as per QR&O 15.21, ultimately, the administrative process under DAOD 5019-2, which was conducted in addition to the release process, granted him the required procedural fairness, In effect, under the AR process, the grievor was notified, provided with full disclosure, and permitted to make representations before his release.