Summary
The Supreme Court restored dismissal of a soldier who admitted 302 days’ unauthorized absence. Section 39 did not preclude dismissal, which Section 71 expressly authorized. Twelve years of service did not make the punishment disproportionate on these facts, and the Tribunal’s notional-service direction to secure pension was set aside.
Issues
- Whether dismissal was an available punishment for unauthorized absence.
- Whether the Tribunal rightly replaced dismissal with notional service until pension eligibility.
Provisions considered
- Section 39; Section 71(e), Army Act, 1950The absence offence’s imprisonment provision did not exclude dismissal, expressly included among court-martial punishments. (¶ 8–9)
Held
- Section 71(e) authorized dismissal on court-martial conviction; the contention that Section 39 required imprisonment instead was rejected. (¶ 9)
- The soldier admitted the 302-day absence and offered a family-property explanation, but made no effort to seek an extension of leave. The Tribunal erred in treating dismissal as disproportionate merely because he had completed twelve years of service. (¶ 10–11)
Result
Union appeal allowed; Armed Forces Tribunal judgment set aside and OA 483 of 2012 dismissed, restoring the court-martial dismissal. No order as to costs.