# 2013-014 Releases, Administrative Review, Counselling and Probation (C&P), Medical Condition, Release - Compulsory,...

Case Summary

F&R Date: 2013–06–28

The grievor was released from the Canadian Forces (CF) under item 5(f) – Unsuitable for Further Service. He disputed his release, contending that supporting documentation from a CF medical specialist, the Wing Surgeon, and a civilian psychologist, clearly indicated that he was under the influence of medication and not in a position to fulfill the conditions of his Counselling and Probation. Although he would have preferred to continue serving, as redress, the grievor asked that his release item be changed to an item 3(b), medical release. Subsequent to his release, the Director Military Careers Administration (DMCA) determined that the grievor's Medical Employment Limitations (MELs) did not warrant a medical release.

The Initial Authority (IA) denied the grievance after determining that it was poor performance that caused the grievor's release; therefore, the release item was correct. The IA explained that a release item is selected after the “prime” reason for release has been determined in accordance with Canadian Forces Administrative Order 15-2. He noted that both the Release Authority and the Head of Medical Policy and Standards for the CF had addressed the grievor's claim that his medical condition contributed to his poor performance, indicating that he was fully responsible for the behavior that led to his release.

The Committee first noted that the Chief of the Defence Staff (CDS), in 2011, published additional guidance regarding how to select the most appropriate release item where there are issues of mental health and inappropriate behavior. While this guidance was published after the release decision was made, the Committee found it helpful to apply its principles to the grievance.

The Committee looked at release items 3(b) - Medical and 5(d) - Not Advantageously Employable, in order to determine whether they might better apply to the grievor's situation. After reviewing DMCA's determination that the grievor's MELs did not warrant a medical release, the Committee found that a medical release was not possible.

The Committee then considered whether release under item 5 (d) might be more appropriate. Although similar to item 5(f), in order to be released under item 5(d), the developed weakness or problem/s would have had to be beyond the grievor's control. There were contradictory medical opinions on file but there was general agreement that the problem behaviour and his general mental health were related. In line with the CDS guidance, the Committee found that there were mitigating factors suggesting that, on a balance of probabilities, the grievor's performance and conduct issues were beyond his control. Therefore, the Committee recommended that the grievance be partially upheld by changing the grievor's item of release to 5(d) – Not Advantageously Employable.

CDS Decision Summary

CDS Decision Date: 2013–10–30

The CDS did not agree with the Board's recommendation that the item of release be changed to 5(d), but rather concluded that the grievor's release under item 5(f) was appropriate. The CDS found no evidence that the grievor's situation coincided with the criteria listed under item 5(d): his performance was unacceptable and given that it was unlikely that his mental health condition resulted in his behavioural problems or rendered him incapable of performing his duties, the CDS was satisfied that the grievor's unacceptable performance was due to factors within his control.