# 2012-002 Pay and Benefits, Imposed Restriction (IR), Recovery of Overpayment/Debt Write-Off, Separation Expense (SE)

Case Summary

F&R Date: 2012–03–21

While on imposed restriction, the grievor was authorized to secure an apartment because no military accommodation was available. He was advised verbally by the Base Orderly Room that the monthly entitlement for separation expense (SE) benefits at his new place of duty was $1,800, and he subsequently incurred SE expenses based upon that advice.

Approximately a year later, staff at the Director Compensation and Benefits Administration (DCBA) determined that the grievor had received SE benefits in excess of the DCBA authorized national monthly rate of $1,090. Consequently, the grievor saw a reduction in his SE rate from $1,800 to $1,090 and, ultimately, the SE benefits that were deemed to have been overpaid were recovered from the grievor. The grievor submitted his grievance, arguing that any overpayment was the result of an error not of his doing. He sought remission of his debt as redress to his complaint.

The Base Commander (BComd), acting as the initial authority (IA), found that the grievor made a sound argument and had taken adequate measures to verify his entitlement to SE benefits. However, the IA concluded that the grievor remained responsible for the overpayment which had to be recovered.

The Board noted that although the Compensation and Benefits Instructions (CBI) are called “Instructions”, they are, in fact, formal policy documents and regulations promulgated by Treasury Board (TB) on the “pay, allowances and reimbursements” of Canadian Forces (CF) members. During the period applicable to this grievance, article 209.997 of the CBI defined the entitlement for SE. However, in October 2008, the DCBA had issued an “Aide-Memoire” purporting to set a maximum ceiling on SE entitlements at specified locations. The Board reviewed the relevant sections of the “Aide-Memoire”, in particular the section regarding maximum allowable monthly SE benefits, relied on by the DCBA in authorizing the national monthly rate of $1,090, and determined that they were inconsistent with TB regulations as stipulated by CBI article 209.997.

Consequently, the Board found that the elements of the DCBA “Aide-Memoire” not consistent with the CBI should not have been relied on by the CF to administer SE benefits. In a precedent case, the Chief of the Defence Staff (CDS) agreed with the Board, stating: “[the grievor’s] benefits should have been calculated using CBI 209.997(3), which establishes the rates for lodging, incidental expenses, and additional parking charges”. Accordingly, the Board found that there was no lawful maximum ceiling for SE at that time and that an audit was necessary to calculate the grievor’s correct SE entitlements in accordance with CBI 209.997.

The Board acknowledged that the audit might determine that the grievor had received SE benefits in excess of his entitlement, meaning that he could still face recovery action, albeit likely of a lessor amount. The Board also explained that this audit would result in a new administrative decision on the part of the CF and, as such, it would be open to the grievor to contest any new recovery action that might result from the audit.

The Board recommended that the CDS uphold the grievance. The Board also recommended that the CDS direct an audit of the grievor’s SE file and that the formula in article 209.997 of the CBI, in effect at the time, be applied and the proper amount of SE payable be calculated. Should the audit confirm that the grievor was overpaid, the Board recommended that the CDS direct that the grievor’s debt be considered for remission.

The Board also made a systemic recommendation that the DCBA be directed to seek TB approval to designate the new SE rate calculated by the audit to become the new approved SE rate for the Base in question. The Board also recommended that the CDS direct that the SE be re-calculated for all members at the Base in question prior to 1 February 2011 who were entitled to SE and were similarly affected by the improper imposition of a maximum rate.

CDS Decision Summary

CDS Decision Date: 2013–04–16

The CDS agreed with the Board's recommendations that the grievance be granted. The CDS agreed with the Board's finding that the Aide-Memoire, in particular the maximum allowable monthly SE for accommodations benefits, were inconsistent with the CBI. Therefore, the CDS, based on CBI 209.86(2) and 209.997(4), found that the grievor was entitled to $1,500 per month.

The CDS agreed with the Board's systemic recommendation that the monthly SE rate for locations other than those listed in the table to the CBI be updated to reflect the increased costs.