Summary
The Court set aside reinstatement of an airman who overstayed leave for roughly eighteen months without informing his unit or a nearby military station. First-offence leniency did not make dismissal shockingly disproportionate to that serious breach of discipline. Exercising case-specific equitable relief, however, the Court substituted discharge simpliciter for dismissal so that the misconduct did not foreclose other employment.
Issues
- Whether first-offence guidance justified overturning the disciplinary penalty for prolonged unauthorised overstay.
- Whether a limited modification could be granted without reinstatement.
Provisions considered
- Regulation 754(C), Defence Service Regulations for Air ForceThe reproduced first-offence sentencing guidance remained subject to disciplinary requirements and ordinary circumstances; it did not require leniency for this prolonged serious overstay. (¶ 7–10)
Held
- The proved charge was overstay without sufficient cause. Roughly eighteen months without communication was not a technical or trivial breach, and the explanations did not establish a basis to overturn the disciplinary choice merely because this was a first offence or custody had been served. (¶¶ 1–2, 5–10)
- Penalty interference required consideration of all relevant factors and a finding of gross or shocking disproportionality, which the Tribunal’s reasoning did not sustain here. (¶ 9–10)
- Reinstatement and related service treatment were set aside, but dismissal was modified to discharge simpliciter to do complete justice on the alternative request. (¶ 11–13)
Result
Appeal partly allowed without costs; reinstatement set aside and dismissal converted to discharge simpliciter.