Tuesday 27 January 2015

Soldier fails in legal action to prevent discharge from army after she failed fitness test

Published 09/04/2014 | 17:49

A SOLDIER has failed in a legal action to prevent her recommended discharge from the Defence Forces over not passing a fitness test.

Cheryl Mellett was admitted as a Naval Recruit in November 2004 for a five year period and passed her fitness test that year but in 2012 failed the test.

She lost a High Court challenge last year to her discharge and yesterday the Supreme Court turned down her appeal over that decision.

The court heard that after suffering "a traumatic personal experience" in the Defence Forces in 2006, she failed her fitness tests in the years between 2006 and 2009 and gained considerable weight.

She underwent a gall bladder operation in September 2010 and suffered soft tissue injuries in an accident in January 2011.

An extension of her service was not recommended but she continued as a private signal woman without engagement. Under the Defence Acts, a person not recommended for extension of service can continue to serve without engagement.

In April 2011, she achieved the necessary BMI (Body Mass Index) to undergo a fitness test but was not permitted take that as she was reported as suffering from a medical condition.

In February 2012, her General Officer Commanding recommended she be given more time to achieve the necessary level of fitness.

A month later, the senior officer with statutory authority to order discharge, ordered her discharge, scheduled for May 2012, but she challenged that in judicial review proceedings.

In March 2013, the High Court rejected claims she was not given the reasons for the recommended discharge.

Dismissing her appeal to a three-judge Supreme Court, Mr Justice Nial Fennelly said the fact of "central and overwhelming importance" in this case was that Ms Mellett had been unable to reach army fitness standards, a fact of which she was fully aware.

Ms Mellett had tried to reach the fitness standards without success and, as a result, had been finally and definitely refused an extension of service. There was no discretion to decide otherwise and no discretion to extend her service, he said.

At best, Ms Mellett was in the anomalous position of a person serving in the Defence Forces without engagement and it was "not at all surprising" the Forces should not wish to retain personnel in that irregular status.

All of the procedures must be looked at in light of the underlying fact that, for several years, Ms Mellett was unable to reach the required standards, was fully aware of that fact and that her service was not extended for that reason.

Irish Independent

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