Remedial Measures DAOD 4019-4 [merged]

[Jarnhamar]

Like answering a post 8 years late.  Just kidding.

 

[Eye In The Sky]

Sorry.  AWOL is AWOL.  There is no stated time as to what constitutes AWOL.  We charged a Cpl with being AWOL for coming in ten (10) minutes late.  The CO, new to job, Charged him with AWOL and Released him from the CF.

We were expecting a slap on the wrist to smarten him up.  He, however, had been placed on C&P by a 2Lt for being AWOL in Germany during Fasching.  We did not know that.  The CO used that to Release him.......for being late for duty by 10 minutes at lunchtime.

Alot of people didn't realize (even pre-Remedial Measures DAOD) C & P stayed on your Pers File forever.

Now, ICs, RWs and C & P are all permanent doc's that can come back to haunt you years down the road...

 

[Shamrock]

It should be further noted that remedial measures are not punitive, but administrative and can therefore accompany a charge. And, unlike a disciplinary hearing, for a RM to be applied, a CO only requires the balance of probabilities the conduct or performance deficiency was present.

 

[TCM621]

Sorry.  AWOL is AWOL.  There is no stated time as to what constitutes AWOL.  We charged a Cpl with being AWOL for coming in ten (10) minutes late.  The CO, new to job, Charged him with AWOL and Released him from the CF.

We were expecting a slap on the wrist to smarten him up.  He, however, had been placed on C&P by a 2Lt for being AWOL in Germany during Fasching.  We did not know that.  The CO used that to Release him.......for being late for duty by 10 minutes at lunchtime.

Wow. Just wow. I can think of guys that have never been on time in their career and are still advancing up the ranks. Wonder how many MWOs or Majs have been released for being late 10 minutes.

I can understand what you are thinking, and it was probably a good idea. But that is crazy.


If I understand the original post, the poster was looking for some ideas on how to correct someone who is coming in late prior to going the charge route. Just some things I have seen over the years that seemed effective:

Have the mbr be "late man" for a period of time. This could be the person who has to do lock up or is on call for tasks that run late.
Or have the mbr show up early for a period of time. For example, the mbr could be require to show up at 0730 vice 0800 for 2 weeks.
Visibly log the time the mbr shows up for work each day. By having the mbr know you are logging his time in, presumably as evidence for a future charge, it may motivate him to show up on time.

Hope these help. Dealing with some one who is habitually a little bit late is tough particularly if the mbr is a good worker other wise.

 

[FJAG]

Regular or reserve force?

If its reserve force there needs to be a detailed analysis done as to whether or not the member was subject to the code of service discipline at the time of the offence.

 

[MedCorps]

One other thing that the CO can do, if they suspect that proximity of work is part of the causation of the soldiers lateness, is to order the member into quarters.  This includes married members. 

Now this occurs at Crown expense (out of the COs budget) so it is not taken lightly.  I have not seen it used for awhile, but there was a CO in Petawawa in early 2000's who used this technique with notable success. 

A two or three weeks stint of living in shacks, nice and close to unit lines, with periodic inspections and bed checks from the Duty Sgt, when your family is at home can really sort out this sort of tardiness.  Might just we worth the few hundred bucks from the ol' budget.

MC

 

[Eye In The Sky]

Regular or reserve force?

If its reserve force there needs to be a detailed analysis done as to whether or not the member was subject to the code of service discipline at the time of the alleged offence.

Sorry, had to.  ;D

 

[Haggis]

Regular or reserve force?

If Reserve Force, Class A or B/C?

If its reserve force there needs to be a detailed analysis done as to whether or not the member was subject to the code of service discipline at the time of the offence.

So true, particularly with Class A.
 
Regarding Class B's I recall a case a few years ago where a Class B member was two hours late for work.  Even though it was not required, to be prudent I sought pre-charge advice from the JAG.  His opinion was that the member was only subject to the CSD during his regularly scheduled working hours and, once dismissed for the day was not again subject to the CSD until he arrived for duty the next day, regardless of what time that was.  Therefore, he could not be charged with AWOL unless he showed up for work and subesquently left early without permission.  Also, since he had not been explicity ordred to arrive at a set time on the day of the alleged offence, a charge of "Disobedience of a Lawful Command" was not an option.  Clearly a "WTF??" moment for me.  So, I took the JAG's "advice", disregarded it and charged the soldier anyway.  It stuck.

 

[X Royal]

So, I took the JAG's "advice", disregarded it and charged the soldier anyway.  It stuck.

A few questions here.
Would it stand up on redress? ???
Was the charged individual given full disclosure of the JAG's opinion?
Was the presiding officer informed of the JAG's opinion?
Was the Jag informed of the charge?
Once you went to the JAG to ignore his advice and failure to disclose that advice to the accused, JAG or presiding officer could open up problems.

 

[George Wallace]

A few questions here.
Would it stand up on redress? ???
Was the charged individual given full disclosure of the JAG's opinion?
Was the presiding officer informed of the JAG's opinion?
Was the Jag informed of the charge?
Once you went to the JAG to ignore his advice and failure to disclose that advice to the accused, JAG or presiding officer could open up problems.

At the same time, I could ask the questions:

"Is the JAG always 100% correct?" - This in concert with next question and my experience.
"Did this JAG actually have the correct references to make the comments, or did they just offer 'their' opinions?" - On this point, I remember a Movement Claim on Posting, in which I was making a claim, and it had to go to the JAG for clarification.  I brought in my Mortgage docs to be sent to the JAG and was turned down because they found nothing in the docs to justify my claim.  I in turn took the doc, opened it to page 2, para 2 and pointed out the statement in my Mortgage that refered to my claim, and the answer back was "Oh!  We didn't see that."  So.  Yes.  The JAG is not always 'perfect' in making 'the call'.

 

[Eye In The Sky]

Unless I misunderstand the QR & O, a mbr cannot redress a charge.  QR & O, Vol 1, Chap 7, Art 7.01(2) refers:

2) There is no right to grieve in respect of a decision made under the Code of Service Discipline.


I'd also, were I the mbr's Assisting Member, point out content of Note (B).

 

[ModlrMike]

Once you went to the JAG to ignore his advice and failure to disclose that advice to the accused...

I don't think you have to disclose your dealings with the JAG to the accused. They should be considered privileged and not subject to examination.

 

[dapaterson]

While a solider (or sailor or airperson) cannot redress the decision of a summary trial, they may submit a request for review.

And, in exceptional cases, I believe the Court Martial Appeal Court has heard appeals of summary trials.

 

[Bzzliteyr]

While a solider (or sailor or airperson) cannot redress the decision of a summary trial, they may submit a request for review.

And, in exceptional cases, I believe the Court Martial Appeal Court has heard appeals of summary trials.

Fact.  I put in a request for review of the decision AND a request for review of the punisment of the results to my summary trial.  It went from a demotion of Sgt to Cpl to instead a $2500 charge and a reprimand.

Back on topic, there are LOTS of "outside the box" ideas you can use to correct a deficiency.  Make sure it's noted on file though if you ever plan on escalating.

 

[Rheostatic]

Regarding Class B's I recall a case a few years ago where a Class B member was two hours late for work.  Even though it was not required, to be prudent I sought pre-charge advice from the JAG.  His opinion was that the member was only subject to the CSD during his regularly scheduled working hours and, once dismissed for the day was not again subject to the CSD until he arrived for duty the next day, regardless of what time that was.  Therefore, he could not be charged with AWOL unless he showed up for work and subesquently left early without permission.  Also, since he had not been explicity ordred to arrive at a set time on the day of the alleged offence, a charge of "Disobedience of a Lawful Command" was not an option.  Clearly a "WTF??" moment for me.  So, I took the JAG's "advice", disregarded it and charged the soldier anyway.  It stuck.

Something's not quite right there...

When am I subject to the CSD?
...
24 hours a day, 7 days a week during any period of full time service (Class "B" or "C" service)
...

 

[Maxadia]

Back on topic, there are LOTS of "outside the box" ideas you can use to correct a deficiency.  Make sure it's noted on file though if you ever plan on escalating.

Yes, there are.  Now, I'm still on BMQ, so feel free to toss whatever I say back at me, but as a high school teacher lateness is an issue that we run into quite often.

I'm going to assume that the member is "just late." As in, they are late for no reason at all.  I have some students that come to school on a daily basis because their parents are drug or alcohol addicts, the kid has been up since 5:30, and they just finished dropping their 5 younger siblings off to school/ dayhome and that is as quick as they can get everything together.  These kids have a ****** life, and they're simply not going to be on time.  I'm just happy to see them come in the door each morning.  My guess is this member is not in any kind of situation like that.

Then I have the slackers.  The ones who don't come on time because...they just don't come on time.  For the first class in the morning, nothing sucks more than getting up in the morning and going to a class that you really don't want to attend, showing up late, and having the teacher make you sit outside the class.  You have to be there, but you're not even participating.  A couple of those will fix things up in short order.

For the ones that are content to sit there and do nothing, extra duties are assigned.  Such as a two page paper on how to get themselves prepared in the morning so that they arrive on time, why it is important to arrive on time, etc. 

Basically, I make it MORE of a pain in the *** to arrive late than it is to motivate themselves to be there on time.  So if your member is coming in late frequently "just because"...things are too enjoyable for them. 

Just my  :2c:

 

[FJAG]

A few questions here.

1. Would it stand up on redress? ??? A. As pointed out above there is no redress of grievance available but a request for a review under QR&O 108.45 is available in lieu. (as an aside because of a previous comment - the Court Martial Appeal Court does not deal with issues arising from a matter heard by summary trial. On the other hand, the Federal Court has the jurisdiction to conduct judicial review of matters dealt with a government agency/tribunal however the costs involved are enormous and would make this a prohibitive remedy)

2. Was the charged individual given full disclosure of the JAG's opinion? A. AJAGs and DJAs are the legal advisors for the chain of command. Their opinions are privileged legal advice and are not required to be disclosed and quite frankly should never be disclosed.

3. Was the presiding officer informed of the JAG's opinion? A. An interesting question. While there is no specific requirement that the person laying the charge disclose the legal advice to the "presiding officer" I would find it very questionable conduct for the person laying the charge not to discuss the legal advice on such an important issue with a much more senior person in the chain of command. Ultimately the CO is responsible for discipline in the unit. He should be aware of the fact that the legal officer has given an opinion that restricts when he can charge a Class B and further should be aware of the fact that a person to whom he has delegated charge laying authority is acting contrary to legal advice.

4. Was the Jag informed of the charge? A In my opinion a member of the chain of command is receiving "advice" and while "advice" is not an "order" he should follow that advice and if he feels the "advice" is wrong, take it up with his senior chain of command and at least be upfront with the legal officer and advise him that he will not follow the advice. Legal officers do not provide advice to just one member of the chain of command. If their advice is not followed they have a responsibility for ensuring that the CO is aware of that.  Note as well: all units are required to submit their Records of Disciplinary Proceedings monthly to their legal advisors for review. In this case that should be the same legal advisor who gave the advice (although it is not unknown for members to go "lawyer shopping" for the advice they want) An RDP review of a conviction on these charges (based on the few facts given) would in my mind be indicative of a legal error which would cause the legal advisor to quash the findings and sentence.

5. Once you went to the JAG to ignore his advice and failure to disclose that advice to the accused, JAG or presiding officer could open up problems. A I think you can see that the above answers point out that there is a real problem here as between the charge layer and the legal officer that needs to be resolved as between the CO and the regional AJAG.

A side note. The issue of whether or not Class Bs could be charged for AWOL (considering the provisions of QR&O 102.01 (NDA 60(1) which limits when reservists are subject to the CSD) was a matter of debate within the branch and if I remember correctly now (this goes back to many years for my brain and the interpretations did change somewhat) was dependant on how the individual's Class B contract was written. One had to analyse if the individual came within the provisions of the QR&O at any given time. The problem here was not dumb lawyers, but supervisors who thought Class B's were liable just like regular force members when in fact the laws of Canada (NDA 60(1)) said otherwise. The NDA was never changed but I believe (but am not sure) that subsequent contracts were eventually standardized to provide greater certainty.

Cheers

 

[Wonderwall1313]

What happens if someone is  AWOL, but their contract is now over?

 

[Jammer]

There can still be a charge preferred under the NDA if the offence occured while the soldier was still employed in the Queen's service. Not uncommon.

 

[PAdm]

but what are the other corrective measures can be taken?

You have a guy who is late.  I am ok with the occasional 30 min late as life happens, but it must be stated in advance through a phone call (e.g. both kids sick and I have to clean up puke before I get in, will be 30 min late).  But even "life happens" is a rare event and if folks are late due to drama every week, there are other issues we need to address.  But so far the point is, in my books, an occasional late is fine as long as it is proceeded by a phone call.

WRT corrective measures, AWOL means you have someone who needs to have his movements more closely monitored and life more controlled.  To help this individual who has been struggling with timings, I would order him in to report to e.g. the unit OR every morning NLT XX hrs and a Clk would ack his arrival and make note.  You could do the same for reporting after lunch or even departures.  If he arrived at X+5 minutes, he is late and thus breaking an order, and thus liable for another charge or further admin action.  Eventually, the mbr will either get a grip and arrive on time, or you will have such a file on him that he will be an admin burden so we can start to talk about release.  Documentation is everything. 

The other benefit to this approach is that you get a sense of what the problem is.  Is he late because he just does not care?  Is there a more complex family issue that we need to investigate and throw resources at?  The reporting in approach let's the supervisor see trends and facilitates conversation.  Sometimes mbrs are late because of fixable issues.  Sometimes, however, they are just turds.

Good luck