eBULLETIN - October 2012
Contents
See our Case Summaries List or Systemic Recommendations for further information about recent and past CFGB cases.
Highlights
Financial Obligation Following an Academic Failure
The grievor enrolled in the Regular Officer Training Plan (ROTP) and attended the Royal Military College. She failed requisite courses for two consecutive years and therefore was required to withdraw from the program. The grievor argued that since she was removed from the ROTP against her will, she should not be obligated to reimburse the costs of her subsidized education.
The grievor argued that he had met the conditions of the Canadian Forces Integrated Relocation Program and that he was entitled to reimbursement of Mortgage Loan Insurance expenses. He argued that the English version of article 8.3.10 includes a limitation which does not exist in the French version upon which he relied.
Reverse Leave Transportation Assistance
The grievor stated that since his next of kin came to visit him before the change in policy, he should be entitled to reimbursement of reverse Leave Transportation Assistance.
Case summaries
Financial Obligation Following an Academic Failure
Board Findings and Recommendations
The grievor enrolled in the Regular Force under the Regular Officer Training Plan (ROTP) and attended the Royal Military College (RMC) for two academic years. During the first year, the grievor failed three courses including one on a requisite subject for the program; she also failed the Basic Military Officer Qualification (BMOQ) course. The grievor remained in the program for a second year, but again failed the requisite subject. As a result, the grievor was informed that she was required to withdraw from the ROTP. In addition, the grievor was also found guilty of academic misconduct after it was determined that she had plagiarized significant sections of an essay; however, in view of the consequences of her second failure, there were no direct consequences to her misconduct.
The grievor was informed that there was no academic option for her to remain at RMC. She was given the option to either revert and serve as a non-commissioned member (NCM) or request a voluntary release. The grievor requested her release indicating "...as I do not wish to serve as an NCM, I am required to request a 4c voluntary release...". With her voluntary release came the obligation to reimburse the costs of two years of subsidized education.
The grievor submitted a grievance arguing that since she was removed from the ROTP against her will, she should not be held financially liable. She complained that the facts relied upon to offer her reversion to NCM were not accurate. She stated she did not excel in all non-academic pillars; she explained she had difficulty meeting the fitness standards in both her first and second year and also maintained she had limited success in her language training, as well as failing to complete her BMOQ. Rather than a voluntary release, she requested a release under item 5(d) - Not Advantageously Employable - of the table to article 15.01 of Queen's Regulations and Orders, which does not carry the obligation to reimburse the cost of her education.
The Commandant (Cmdt) RMC, acting as the initial authority (IA) denied the grievance. He explained that the grievor was removed from the ROTP, but not the Canadian Forces (CF). The grievor chose to refuse the offer of serving as an NCM and requested a voluntary release; in the IA's opinion, it is not the removal from the ROTP that incurred the financial obligation to reimburse the Crown for her subsidized education, but her voluntary release. The Cmdt added that the offer of service as an NCM was made because of the grievor's strong non-academic performance.
The Board acknowledged that the grievor had clearly failed the academic pillar without hope of redemption; consequently, the decision to require the grievor to withdraw from her program of study was unassailable in accordance with the applicable RMC academic regulation.
Notwithstanding the assertion by the Cmdt RMC that the grievor was offered service as an NCM because she excelled in the other three non-academic pillars, the Board noted that after two years as a cadet, the grievor had not yet achieved the RMC standard for physical fitness and that her Squadron Commander recommended that she be given a "failed year" status on the athletic pillar. As well, the grievor had failed her BMOQ and was involved in an incident determined to constitute academic misconduct.
The Board found that, based on the grievor's entire performance at RMC, she could and should have been subject to a Progress Review Board (PRB) and a decision should have been rendered as to whether or not she could continue. Although there can be no certainty as to the outcome of the PRB, the Board was of the view that a recommendation for compulsory release would have been most likely.
The Board recommended to the Chief of the Defence Staff (CDS) that the grievance be upheld and that the grievor's release item be changed to 5(d), indicating a compulsory release without financial obligation.
The Board also recommended that any ROTP subsidized education fees recovered from the grievor be reimbursed to her.
Final Authority Decision
The CDS agreed with the Board's recommendation to uphold the grievance. The CDS was of the view that the grievor should have been administered under sub-paragraph 38(c), versus 38(d), of Canadian Forces Administrative Orders (CFAO) 9-12. As a result, the grievor should not have been required to voluntary release, but she could have been released under item 5(d) (Not Advantageously Employable), without the financial obligation of reimbursing the Crown for the costs associated with the ROTP program. The CDS directed that the necessary paperwork be prepared to absolve the grievor of her obligation to repay her debt, and that the transaction where her pension benefits were applied to her promissory note be reversed.
The CDS identified a systemic issue since there are Officer Cadets (OCdts) who faced similar decisions following a true academic failure. Therefore, the CDS directed that the document entitled "ROTP - A Résumé of Pertinent Military Regulations and Terms of Service" be reviewed to ensure it clearly identifies the financial obligation of OCdts when there is a requirement to withdraw from this program due to a genuine academic failure. In addition, the administrative process in accordance with CFAO 9-12 must also be reviewed to account for genuine academic failures, and it should be replaced by a Defence Administrative Order and Directive. The administrative process for such failure will be also reviewed at the RMC to ensure that proper policies are adhered to and that all available options, with respect to OCdts' desires and abilities, are explored.
Mortgage Loan Insurance Fees
Board Findings and Recommendations
The grievor was posted to another province and purchased a replacement residence before the residence at origin had sold. The grievor obtained a new mortgage on the replacement residence, incurring Mortgage Loan Insurance (MLI) fees. As soon as the home at origin sold, the grievor transferred the entire equity to the replacement residence.
The grievor argued that he had met the conditions of the Canadian Forces Integrated Relocation Program (CF IRP) and that he was entitled to reimbursement of MLI expenses. He argued that the English version of article 8.3.10 requires that, in order to be eligible for the MLI benefit, Canadian Forces (CF) members should transfer 100% of the equity from the sale of the home “upon closing of the replacement residence”; however, the French version, upon which he relied, does not contain that limitation. Further, the grievor argued that the Brookfield Global Relocation Services consultant did not advise him of the limitation found in the English text of the CF IRP.
There was no initial authority decision in this grievance.
The Board reviewed the applicable provisions in both official languages and found that they were indeed inconsistent; the French version only required that equity from the former home be transferred “immediately” towards the new residence – not “upon closing” of the new residence. The Board looked to the intent of the chapter implied in article 8.1.03, which provides that CF members can claim benefits such as the MLI if the closing date of the residence sold or purchased is no more than one year before or two years after the Change of Strength (COS) date. The Board found that this provision on time limit was inconsistent with the restrictive English version of article 8.3.10.
The Board recommended that the Chief of the Defence Staff (CDS) uphold the grievance.
The Board recommended that the CDS direct that the grievor be reimbursed the full amount of the MLI expenses he incurred.
The Board also issued a systemic recommendation that the French and English versions of article 8.3.10 of the CF IRP be reconciled, and that the intent of the English version be reconsidered and clarified.
Final Authority Decision
The CDS agreed with the Board's recommendation to uphold the grievance. The English and the French versions of article 8.3.10 of the CF IRP are conflicting. The CDS was of the view that, as per interpretation rules, the English version, the more restrictive one, should prevail; however, since this version leads to an illogical result, and in conjunction with the reading of the article 8.1.03 regarding the time limitations to claim the benefits, the French version should apply. The CDS directed the Director General Compensation and Benefits (DGCB) to undertake remedial action by reimbursing the MLI fees incurred by the grievor.
The CDS also agreed with the Board's systemic recommendation that corrective action be taken to reconcile the discrepancy between the English and French versions of article 8.3.10 of the CF IRP. This article should reflect the true intent of the policy which is that reimbursement of MLI would occur if 100% of the equity from the sale of the former residence is transferred to the new residence as long as it is within one year before or two years after the COS date.
Reverse Leave Transportation Assistance
Board Findings and Recommendations
In November 2010, the grievor's next of kin (NOK) travelled to the grievor's location for a visit. At the time, reverse leave transportation assistance (LTA) was one of the benefits allowed by the Director Compensation and Benefits Administration Domestic Benefits Aide-Memoire (Aide-Memoire). In February 2011, the Chief of Military Personnel announced that there was no longer an entitlement to reimbursement of reverse LTA. Also, in February 2011, the grievor indicated his intention to submit a claim relating to his NOK's visit, but was told that due to the policy change, he was no longer entitled to the benefit.
The grievor submitted a grievance stating that, in his view, since the trip took place before the change in policy, he should be reimbursed.
The Board found that Compensation and Benefits Instructions (CBI) article 209.50 - Transportation on Leave, in effect at the time the grievor's NOK visited him provided no authority for reverse LTA. The Board also pointed out that in previous cases it had reviewed, it concluded that, through the issuance of the Aide-Memoire, the Canadian Forces (CF) had expanded or restricted some of the benefits available to CF members in error and without proper authority. The Chief of the Defence Staff (CDS) has since agreed with the Board and directed that the situation be remedied.
In February 2011, CANFORGEN 033/11 - Compensation and Benefit Administration, confirmed there was no entitlement to reimbursement of reverse LTA and that the Aide-Memoire authorized payment of some benefits and allowances without authority. It directed that these payments stop immediately. The Board noted, however, that the CANFORGEN also directed that no recovery action take place on advances already issued to CF members who had no entitlement to the funds.
The Board concluded that the Aide-Memoire cannot be used to reimburse the grievor's reverse LTA; in addition, while it may seem unfair to the grievor that some CF members did receive this benefit under the Aide-Memoire, albeit without authority, these errors cannot serve as the basis to provide him with the remedy sought.
The Board next turned to CBI paragraph 209.013(2) which provides for special powers of the Minister of National Defence to grant exceptional compensation to a CF member if the three following conditions are met: 1) the benefit must have been denied because the CF member's relevant circumstances, although not dissimilar, were different from the circumstances established; 2) the granting of the benefit must be consistent with the intent of the policy and; 3) the granting of the benefit must be equitable in the circumstances.
The Board was of the opinion that the grievor's situation was not dissimilar because the purpose of the LTA benefit is to visit with NOK, which he did, but the circumstances were different because it was the grievor's NOK who travelled instead of the grievor himself; the granting of the benefit was consistent with the intent of the policy which is to reimburse CF members once per year for expenses related to their transpsortation to visit their NOK while on leave; and it would be equitable and consistent with CBI 209.50 to reimburse the grievor the actual and reasonable expenses he incurred to visit with his NOK.
The Board recommended that the CDS uphold the grievance.
The Board recommended that the CDS invoke Ministerial Authority and direct the reimbursement of the grievor`s reverse LTA claim.
Final Authority Decision
Pending.
Statistics
Category of grievances received since 2010
Data as of September 30, 2012
[Long description of Category of grievances received since 2010 chart]
Findings and Recommendations (F&R) rendered in 2012
97 cases as of September 30, 2012
[Long description of Findings and Recommendations (F&R) rendered in 2012 chart]
Decisions rendered by the CDS
74 received between January 1, 2012 and September 30, 2012
[Long description of Decisions rendered by the CDS chart]
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