Wednesday 13 December 2017

Naval recruit loses challenge to discharge over fitness

Tim Healy

A NAVAL recruit has lost a legal challenge to her recommended discharge from the Defence Forces following her failure to pass fitness tests.

Cheryl Mellett, who was admitted to the Defence Forces in November 2004 for a five year period, passed her fitness test that year.


After suffering  what she described as "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, the High Court heard.


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 in the Defence Forces.


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 Body Mass Index (BMI) 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 in a letter she be given more time to achieve the necessary level of fitness.


However, a month later, Major General Boyle, the officer with statutory authority to order discharge, ordered her discharge and it was scheduled for May 2012. She challenged that in judicial review proceedings.


In his judgment today, the President of the High Court Mr Justice Nicholas Kearns, rejected claims she was not given the reasons for the recommended discharge and found she was well aware of the sole reason for consideration of her discharge.


Pte Mellett had herself accepted being a member of the Defence Forces required achieving and maintaining the necessary level of physical fitness, especially when a member was being considered for extension of service, the judge said.


Pte Mellet had not passed a physical fitness test since 2005 and, while it was accepted she may be a valued member of the Defence Forces in some respects, the decision for her discharge at all times rested on whether she had passed the fitness test, he said.


 The relevant Defence Forces regulations also required a private to meet the requisite fitness and medical standards and the decision maker had little discretion in that regard.


It was clear from the ample evidence before the court Pte Mellett was given every reasonable opportunity to reach the level of fitness required in order to be recommended for an extension of service, he said.


While it was accepted she had not received her Extension of Service file, she could have been in no doubt about the details of her fitness history in that file or the consequences of her failure to meet the compulsory fitness standards, the judge added.


Pte Mellett disputed it was practical to expect her to achieve, over four months from February 2011, the necessary BMI to undergo her fitness test but had not cross-examined the army evidence on that issue, he said.


He also found Major General Boyle was aware of all relevant matters when deciding to discharge Pte Mellett and was entitled to discharge her despite her commanding officer's recommendation she be given more time to achieve the required fitness levels.

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