PuckChaser said:
EITS, you were in the Army before if I remember correctly. You're telling me there isn't a marked difference about how a Pte in 3RCR would be disciplined for being late to a parade compared to an Aviator in Greenwood?
I was.
I'd say "yes" to your question, but the difference is the application of powers of punishment, not the orders/directives written that give more harsh (or lenient) powers to a Delegated O serving in one command or the other; important difference (to me?).
TL;DR summary; the CAF is required to be 'fair' in imposing judgements.
This would be specific direction for CAF members posted to C Army, and that strikes me as (potentially) unfair. Related to this (IMO)...a few excerpts from A-LG-007-000/AF-010 (CF Administrative Law Manual), Chap 2 Administrative Law in the CF, Section 3 - General Principles of Procedural Fairness:
26. Even though procedural fairness is “flexible and variable,” a court that is reviewing an administrative decision must assess the entire context of “the particular statute and the rights affected.” In order to determine the specific content of procedural fairness, a court will examine several factors, such as the:
a. nature of the decision being made
and process followed in making it;
b. nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
c.
importance of the decision to the individual or individuals affected;
d. legitimate expectations of the person challenging the decision; and
e. c
hoice of procedures made by the agency itself
Section 4 - Procedural Fairness in the CF
28. The requirement for procedural fairness in CF administrative decision-making has been established in several court cases at the FCC level. The majority of these judicial review applications have pertained to cases where members have been compulsorily released from the CF. The decisions of the courts
have confirmed the overall duty of fairness owed to CF members and provided guidance as to the content of procedural fairness in each case.
30. It is trite to suggest that CF leaders and supervisors who make administrative decisions should do so fairly. That said, the duty to act fairly will vary depending upon the circumstances.
An administrative order to impose one day’s forfeiture of pay for every day a member is guilty of being absent without leave engenders no duty of fairness because the law specifies the result: no discretion is involved In contrast, most discretionary decisions that adversely affect a member, such as whether to revert a non-commissioned member who has been convicted by a civil authority, will engage a duty to act fairly.
CHAPTER 14 - ADMINISTRATIVE ACTION - SECTION 1 INTRODUCTION
1. Supervisors at all levels are generally responsible for promotion of the “welfare, efficiency and good discipline of all subordinates.” Accordingly, supervisors possess a broad range of administrative authority and a variety of administrative procedures that they can use to correct the inadequate performance or misconduct of CF members.
Except for compulsory release, administrative actions are intended to provide an opportunity for a CF member to correct or overcome a personal performance or conduct deficiency and then continue with their military career in a positive and productive manner. Administrative actions are normally progressive; starting with the least severe administrative sanction and progressing onward to more severe sanctions only if the performance or conduct does not improve. The chain of command always has the option of initiating administrative action starting with more severe sanctions when appropriate, taking into consideration the nature and seriousness of the member’s deficiency or misconduct as well as the concept of procedural fairness that underlies all administrative action.
2. The application of the principles of procedural fairness will vary depending on the type of administrative sanction utilized. In general,
as the potential consequences of an administrative action become more severe, the member’s entitlement to procedural fairness increases. Within the CF, the highest level of procedural fairness that is most often applied requires the member to receive:
a. notice that the decision is being considered;
b. disclosure of all documents and information that will be considered by the decision-maker when making the decision;
c. the opportunity to make representations; and
d.
a fair and unbiased
decision by the decision-maker, accompanied with reasons.
So again to my example; Sgt Bloggins (Army) and Sgt Blogins (Air Force) do the same act, and Bloggins is treated more harshly because of a C Army "directive"; does that seem "fair" IAW the CF Admin Law Manual excerpts?
I'm far from a legal SME, but based on my time in, experiences and interpretation...I'm of the opinion that a 'army specific' order creates the potential for a disparity of treatment or the appearance of a disparity of treatment.
So...should the order, if indeed required, not be issued by CDS, CMP or some other senior CAF authority so it applies to
all CAF members?
