Whether the Defence Forces was justified in its decision to refuse to amend the conduct rating contained in the applicant's Certificate of Service and Notification of Discharge on the ground that the assessment is not incomplete, incorrect or misleading

26/09/2018

Background

The applicant in this case was a member of the Defence Forces for ten years up to his discharge in August 2017. In June 2017 he was convicted of a criminal offence, for which he received a suspended sentence of six months imprisonment and a certain amount of community service. He was subsequently discharged from the Defence Forces. In April 2018 the applicant submitted an application under section 9 of the FOI Act for the amendment of two records, namely his Certificate of Service (LA 89) and his Notification of Discharge (Long Version) (AF 97B). He sought the amendment of an entry relating to an assessment of his military conduct in each of the records from "unsatisfactory" to "very good".

The Defence Forces refused the application on the ground that the information concerned was not incomplete, incorrect or misleading. It cited paragraph 38(e) of Defence Forces Regulations (DFR) A.8. (Documents, Orders, Records, Correspondence and Returns) in support of its decision. On 18 May the applicant sought a copy of DFR A.8. to enable him to consider his response but the Defence Forces refused to provide a copy of same on the ground that it did not fall within the scope of his request.

On 27 May 2018, the applicant sought an internal review of the decision to refuse his application for amendment. He also argued that the AF 97B should be struck out altogether and replaced with a self-discharge form which, he alleged, he had submitted prior to his discharge. On 18 June 2018, the Defence Forces issued its internal review decision, affirming the original decision. The applicant sought a review by this Office of that decision on 2 July 2018.

In conducting this review I have had regard to correspondence between the applicant and the Defence Forces in relation to the request and to correspondence between this Office and both the applicant and the Defence Forces on the matter.

Scope of Review

While the applicant argued in his request for internal review that the AF 97B should be struck out altogether, this did not form part of his original request. As such, this review cannot consider whether or not the form should be struck out. 

Rather, it is concerned solely with whether the Defence Forces was justified in refusing to replace the assessment of "unsatisfactory" concerning the applicant's conduct in records LA 89 and AF 97B with an assessment of "very good" on the ground that the assessment is not incomplete, incorrect or misleading. 

Preliminary Matter

Before I address the substantive issues arising in this case, I would like to clarify, for the benefit of the applicant, the limits of my remit, having regard to the contents of his submissions to this Office. The applicant has raised concerns about the legality of his discharge from the Defence Forces. He has also argued that he should have been allowed to apply for self-discharge and he alleged that the Defence Forces wrongly refused to accept an application for self-discharge.

This Office has no role in examining the administrative actions of the Defence Forces in relation to the manner in which the applicant was discharged or the legality of that discharge. Complaints about the administrative actions of the Defence Forces fall within the jurisdiction of the Ombudsman for the Defence Forces. Our role is confined to considering whether the Defence Forces has properly applied the provisions of the FOI Act.

Analysis and Findings 

Section 9 of the FOI Act provides for the amendment of incomplete, incorrect or misleading personal information in records held by public bodies. In the absence of any express statement regarding the onus of proof, this Office considers that the onus lies on the applicant as the party asserting that the information is incomplete, incorrect or misleading and that the standard of proof required is that of "the balance of probabilities". It follows that an applicant seeking to exercise the right of amendment under section 9 must show that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading. 

Section 9(2)(b) requires that an application "shall, in so far as is practicable ... include appropriate information in support of the application". This Office does not see its role as being to conduct its own comprehensive enquiry as to the accuracy or completeness of records held by a public body. Rather, it has regard to the evidence actually provided by the applicant, and to any rebutting evidence put forward by the public body, and make a decision on that basis. It is also important to note that where an applicant fails to provide sufficient evidence to enable this Office to conclude that the information in a record is incomplete, incorrect or misleading, the records remain undisturbed, but this does not carry any judgement on the part of this Office that the record is, in fact, complete, correct and not misleading.

The information that the applicant believes to be incorrect in this case is the assessment of his conduct as "unsatisfactory" in the two records at issue. In his correspondence with the Defence Forces, he argued that he was never paraded for less than good conduct and that no records or complaints of bad or unsatisfactory conduct were ever generated in his name at any time while he was a serving member of the Defence Forces. He provided copies of what he describes as court documents rating his conduct as good in March 2016 and very good in June 2017. The documents contain details of civil trials involving the applicant in 2016 and 2017. 

The applicant also alleged that the Defence Forces failed in its duty to complete "Conduct and Ability Assessments" in the years 2014 to 2017 and failed to complete the required AF 667 forms for those years. He argued, therefore, that as the reports he submitted are the only legal records of his conduct in the two years prior to his discharge and as the Defence Forces failed to keep accurate records of his service, it is incumbent on the Defence Forces to accept that his discharge documents must be amended as requested.

In relation to the particular extract from DFR A.8. cited by the Defence Forces in support of its decision to refuse his application for amendment, the applicant noted that the relevant extract referred to a non-commissioned officer or private who, during the period of two years immediately prior to the date of assessment, has been sentenced to imprisonment by a civil court. He argued that no assessment had been carried out in the two years prior to his discharge and that he was not sentenced to imprisonment but instead received a suspended sentence.

In a submission to this Office, the applicant submitted copies of completed AF 667 forms for the years 2009 to 2013 which, with one exception, rated his performance as good. The exception was for 2012 where the conduct rating was not completed but the form contained positive commentary on his performance for the year.

In essence, the applicant's argument is that he has produced sufficient evidence to support his contention that his conduct for the entirety of his time served in the Defence Forces was rated as good or very good and that he was never paraded for a less than good rating in accordance with the Defence Forces Regulations.

The Defence Forces, on the other hand, argued that the conduct rating awarded on discharge was in accordance with the relevant Regulations. It again referred to paragraph 38 of DFR A.8. in support of its position that the applicant's conduct had properly been rated as "unsatisfactory" and it subsequently drew the attention of this Office to 'A' Administrative Instructions Part 10, entitled "Personnel Matters". I should say at this stage that it is unfortunate the Defence Forces did not provide the applicant with copies of the relevant Regulations and Instructions as it may have allowed him to more fully understand the decision taken on his application for amendment. I have examined the relevant parts of DFRs A.8. and A.10. and 'A' Administrative Instructions Part 10. 

Section II of DFR A.8. is entitled "Assessment of military conduct and ability. Military Conduct - when assessed.". Paragraph 37 details the circumstances in which the military conduct of a non-commissioned officer or private shall be assessed, including "discharge from the Permanent Defence Force". Paragraph 38 is concerned with the assessment of conduct. It contains details of the various assessment levels (or ratings), including an assessment of "unsatisfactory". It provides as follows:

"Except as provided in subparagraph 39(2) of these Regulations the military conduct of a non-commissioned officer or private shall be assessed on the following basis ... (e) UNSATISFACTORY (UNSAT.). A non-commissioned officer or private who during the period of two years immediately prior to the date of assessment, has, (i) been sentenced to imprisonment by a court-martial or by a civil court ... shall be assessed as UNSATISFACTORY"

Section 39 is concerned with the assessment of non-commissioned officers or privates on transfer to the Reserve on discharge and is of no relevance in this case.

Section 4 of 'A' Administrative Instructions Part 10 is entitled "Award of Conduct Rating on Discharge or Transfer to the RDF". Paragraph 423 of that section is entitled "Criteria for Assessment of Conduct on Discharge". The relevant part of the paragraph provides as follows:

"Commanding Officers shall be strictly guided by the terms of DFR A.8. Para 38."

As I have outlined above, the applicant argued that the Defence Forces was wrong to rely on paragraph 38 of DFR A.8. Firstly, he argued that no assessment had been carried out in the two years prior to his discharge. It seems to me that the applicant has misinterpreted the paragraph. The "assessment" referenced in the paragraph is clearly the assessment being undertaken on discharge and does not refer to any previous assessments. Secondly, in response to the applicant's argument that he was not sentenced to imprisonment but instead received a suspended sentence, the Defence Forces stated that a suspended sentence is interpreted as a custodial sentence in that the judge awards a custodial sentence but suspends it on certain conditions. Should the conditions remain upheld, then the convicted offender does not have to serve the imposed term of imprisonment in prison. 

Having examined the relevant provisions of the Defence Forces Regulations and Administrative Instructions, it seems to me that the conduct rating of "unsatisfactory" was awarded in accordance with those Regulations. The Regulations do not allow for previous assessments to be taken into account when preparing a conduct rating, which is the essence of the applicant's argument. Accordingly, I do not consider that the applicant has demonstrated, on the balance of probabilities, that the conduct rating of "unsatisfactory" on records LA 89 and AF 97B is incomplete, incorrect, or misleading. I find, therefore, that the Defence Forces was justified in refusing to grant the application for amendment of those records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Defence Forces to refuse to replace the assessment of "unsatisfactory" concerning the applicant's conduct in records LA 89 and AF 97B with an assessment of "very good" on the ground that the assessment is not incomplete, incorrect or misleading. 

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal. 

Stephen Rafferty,
Senior Investigator