Fed Ct: "Alberta soldier denied promotion due to PTSD should have case reviewed"

[The Bread Guy]

This from CBC.ca:

A Canadian soldier who was denied a promotion because his post-traumatic stress disorder prevented him from completing a required course should have his case re-evaluated to reflect the military's greater understanding of the condition, a federal court has ruled.

Cpl. Joel Mousseau turned to the court to challenge what he called his "unwarranted demotion" from the rank of master corporal, which he held on an acting basis for four years before his condition led to his medical release from the military.

Several military bodies had previously upheld the decision and refused to waive a training requirement that would have forced Mousseau to take the Armoured Crew Command course.

'It was an unreasonable decision'

In its decision, the federal court said the course had to do with armoured vehicles and explosives "which was directly related to the PTSD diagnosis."

"It seems a bit of a 'Catch 22' to say that the soldier on (medical employment limitations) for PTSD must be exposed to the very thing that is a trigger to the PTSD though he had been doing an exemplary job of teaching other soldiers without the artillery course," the court said.

"It is understood that the understanding of PTSD within our Armed Forces has progressed rapidly lately. In fairness to the decision maker the evidence and procedures for dealing with PTSD that can now be marshalled may not have been available or before them at the time." ....

Federal Court decision (Mousseau v. Canada (Attorney General)) here or attached.

 

[dapaterson]

Interesting.  A number of what appear to be factual errors in the decision (course names, references) but it is impressive that a self-represented litigant in the Federal Court was successful.

 

[medicineman]

Hmmm - there's a can of worms I might be able to leverage into a lot back pay...though someone might look at that and say I had no medical reason to miss my ILQ for all those years (except being on a compassionate posting for 2 years).

MM 

 

[Eye In The Sky]

Promotions or appointment to MCpl have prerequisites.  If you can't fulfill them, why would you get promoted?  Not to mention Acting/Lacking for 4 years.  Isn't there a 2 year limit before the Leaf falls off?

PTSD is a medical condition, so shouldn't it be treated like any other medical condition that makes it so you can't do your job or attend career courses?

 

[PuckChaser]

Yeah, dude had 2 years to do the course before going to JPSU. I don't think the Fed Court understands that if this was approved, it makes any course requirement useless. Can't do course because of bad back? Promoted.

 

[The Bread Guy]

Promotions or appointment to MCpl have prerequisites.  If you can't fulfill them, why would you get promoted?  Not to mention Acting/Lacking for 4 years.  Isn't there a 2 year limit before the Leaf falls off?

I was wondering about the whole appointment/promotion thing myself.

At one point, according to the decision (on pg. 7), though ...

... Cpl. Mousseau contended that the reversion in rank policy for the Armoured Corps-D Mil C until 2013 was that a member was promoted Acting Lacking after their PLQ-L and then had four years to complete their ACC to be substantive rank. Cpl. Mousseau said that in the old system on slide 5 of the Career Managers Brief page five (5) that you need PLQ to get your leaf and then ARCC to retain it. But under the new system for 2014-2015 to be a MCpl. you only need the PLQ-L (Leadership Qualification) and only if you then wished to progress in rank do you need the ARCC. His position is that he falls under the new system as his permanent medical category assignment happened in 2014 so he does not even need the ARCC to retain his MCpl. when he was retired ...

"It depends who you ask when"?

And have to agree with dataperson re:  the poor copy editing of the decision itself.

 

[Ostrozac]

What's the real advantage to the member if he eventually is retroactively appointed as a substantive MCpl, though? His pension is based on best monthly earnings, whether those months were acting/lacking or substantive, and he did 4 years as an A/L MCpl, so he has 4 out of 5 pensionable years as a MCpl, and would only be looking at one years extra as a MCpl toward his pension. Plus, the difference between Cpl and MCpl pay for a senior non-specialist is only $200 a month -- it's still money, but it's not like he's fighting for the $1200 a month that separates a senior Capt from a senior Maj.

 

[RCDtpr]

What's the real advantage to the member if he eventually is retroactively appointed as a substantive MCpl, though? His pension is based on best monthly earnings, whether those months were acting/lacking or substantive, and he did 4 years as an A/L MCpl, so he has 4 out of 5 pensionable years as a MCpl, and would only be looking at one years extra as a MCpl toward his pension. Plus, the difference between Cpl and MCpl pay for a senior non-specialist is only $200 a month -- it's still money, but it's not like he's fighting for the $1200 a month that separates a senior Capt from a senior Maj.

I'd wager it's probably more a matter of principle.

 

[ModlrMike]

... under the new system for 2014-2015 to be a MCpl. you only need the PLQ-L (Leadership Qualification) and only if you then wished to progress in rank do you need the ARCC

The core issue in this specific instance appears to be that he's arguing that he had no intention of advancing in rank, and therefore only required the PLQ-L.

I'm not convinced that a similar argument can be made for other ill/injured pers who's trades do not have this flexibility.

At the end of the day, the regulations state that you are released at your substantive rank as was done here, so I don't see how he improves his outcome.

 

[PuckChaser]

Maybe the crown should appeal that the original decision erred in that the ex-member was not in fact demoted, he had his appointment removed as Master Corporal is not a rank under the NDA?  :subbies:

 

[Ostrozac]

Maybe the crown should appeal that the original decision erred in that the ex-member was not in fact demoted, he had his appointment removed as Master Corporal is not a rank under the NDA?  :subbies:

Well, the whole MCpl rank/appointment thing is a massive scab just waiting to be picked. It would make an amusing Supreme Court case -- since Canada tells NATO that it's a separate rank (OR-4 vs OR-5), in violation of our own NDA -- the Supreme Court might even be able to call as witnesses senior NATO Generals.

I asked him what his rank was. He said Master Corporal. I said that did not make sense, I have read the Canadian National Defence Act, but he insisted, Your Honour.

 

[George Wallace]

-- since Canada tells NATO that it's a separate rank (OR-4 vs OR-5),

Perhaps and perhaps not.  The NATO grading of ranks is not "Ranks" but "Grades".  It is an attempt to match the ranks of the various nations to those of others in relation to their responsibilities and training.  You will see our MCpl graded the same as a Sgt from various other nations under the NATO Code OR-5; meanwhile a MCpl (Caporal-chef) in the Belgium and French armies are graded as an OR-4 and equivalent to a Cpl in the CAF and other militaries.

 

[RedcapCrusader]

What's the real advantage to the member if he eventually is retroactively appointed as a substantive MCpl, though? His pension is based on best monthly earnings, whether those months were acting/lacking or substantive, and he did 4 years as an A/L MCpl, so he has 4 out of 5 pensionable years as a MCpl, and would only be looking at one years extra as a MCpl toward his pension. Plus, the difference between Cpl and MCpl pay for a senior non-specialist is only $200 a month -- it's still money, but it's not like he's fighting for the $1200 a month that separates a senior Capt from a senior Maj.

Could also mean a world of difference on his résumé....

 

[chrisf]

Could also mean a world of difference on his résumé....

Not really.

If you're talking about civilian work, very few would know the difference or care about the distinction.

Nor would it change his work experience/training received.

So no, no real effect on resume.

 

[Occam]

Maybe not in this particular instance, but I've seen Public Service jobs (mostly technical in nature, EL, EG and TI classifications) that stipulated QL6A as an essential criteria, for example.  And in some trades, the difference between being QL5B and QL6A is the maple leaf.

 

[SupersonicMax]

Maybe not in this particular instance, but I've seen Public Service jobs (mostly technical in nature, EL, EG and TI classifications) that stipulated QL6A as an essential criteria, for example.  And in some trades, the difference between being QL5B and QL6A is the maple leaf.

I think the course code on you MPRR would bear more weight than the fact that you had a maple leaf or not.

 

[Occam]

I think the course code on you MPRR would bear more weight than the fact that you had a maple leaf or not.

Yet the QL is what is normally used, when it is used.  The competition I was hired under required QL6A, in addition to general electronics qualifications.  The current pool of applicants had the same QL6A requirement.

 

[RedcapCrusader]

Not really.

If you're talking about civilian work, very few would know the difference or care about the distinction.

Nor would it change his work experience/training received.

So no, no real effect on resume.

You'd be surprised at how many employers do understand and care to know the difference, and I wasn't seeking out people that hired military members/veterans.

I've had (potential) employers ask me what my rank is, and when I'd mention Corporal, many of them understood that it's not necessarily a leadership position and I received a resulting "Oh, I see...".

Some also understand that while you can obtain a leadership qual, it doesn't always mean you're actively employed in a leadership position. Just like some organizations can allow you to take a Working Leader/Frontline Supervisor course, but it doesn't necessarily mean you are one.

So, for some, the Leaf can make a difference.

 

[Eye In The Sky]

Well, the whole MCpl rank/appointment thing is a massive scab just waiting to be picked. It would make an amusing Supreme Court case -- since Canada tells NATO that it's a separate rank (OR-4 vs OR-5), in violation of our own NDA -- the Supreme Court might even be able to call as witnesses senior NATO Generals.

I asked him what his rank was. He said Master Corporal. I said that did not make sense, I have read the Canadian National Defence Act, but he insisted, Your Honour.

Whats the scab...I'm not seeing it.  The whole MCpl appointment thing is well laid out in the QR & 0;  rank remains that of Cpl.  Senior to all Cpls, in the appointment of MCpl. 

 

[OldSolduer]

If I am physically disabled ie broken leg and I can't complete my leadership course then I don't get promoted. So what's the difference here? He has an injury that prevents him from completing training, therefore he does not get the qualification.
Once he demonstrates he can complete the training successfully then he may be promoted.