We had a recent case where a soldier’s service was nearly terminated following Major Administrative Action. He would have lost a huge lump sum from his pension and been homeless. Fortunately, the Reviewing Officer stopped this happening but only because he had all the information the Deciding Officer did not have; information the soldier should have given him.
Major Administrative Action can have a huge impact on your career and your long-term financial security, and it is vital you engage fully with the process. Originating Officers and Deciding Officers can only make decisions on the information they have so you need to play your part to make sure they have the information they need.
MAA – An overview
MAA is taken when it appears a soldier has breached the Service Test through misconduct or inefficiency. It is independent of the Service Justice System or the Criminal Justice System, you can be subject to MAA even if you are acquitted of an offence. MAA is there to safeguard and restore Operational Effectiveness. It is not there to punish but to repair the damage done to OE. It does this by imposing sanctions on those who have breached the Service Test.
What is the Service Test and how is it decided if I have breached it?
The Service Test asks, “have the actions or behaviour of an individual adversely impacted or are they likely to impact on the efficiency or OE of the Service?”. You can adversely impact on OE by failing to adhere to the Values and Standards or by damaging the reputation of the Army for example by being convicted of drink driving or by having an affair with a colleague’s partner.
The DO will decide if the test is breached by asking themselves “on the evidence in front of me is it more likely than not that you actions or behaviour have adversely or were likely to impact on the efficiency or OE of the Service?”. If the answer is yes, then the test is breached.
What sanctions could I face?
All the sanctions are set out in AGAI67 at 67/3-2. You can only be awarded one sanction although that can be coupled with a removal from appointment and/or a final warning. The most serious sanctions are:
- Termination of Service
- Forfeiture of seniority (Officers)
- Reduction in rank
- Censure no promotion/deselect
The effect of these sanctions can follow you for your whole life. Termination of service obviously means loss of employment and possibly housing, it can also mean you lose out on receiving a pension lump sum. Getting promoted behind your peers or losing your rank will result in a smaller pay packet in the short term but can also impact your pension as you spend less time in higher ranks, earning more…so it is important to get the right outcome!
How can I help ensure the right outcome?
You get three opportunities to make sure the correct outcome is considered:
- The Initial Interview with the OO
- A written representation to the OO
- The Interview with the DO
The Initial Interview with the OO
This is the opportunity to point to evidence that the OO may not have considered e.g. other witnesses to an incident, other documents, medical records, or court records. After the Interview the OO has a duty to investigate ‘expeditiously, thoroughly and fairly’ which means they have to investigate things that assist your case and undermine the case against you as well…but they have to know where to look and you need to help them by telling them.
Written Representation to the OO
This occurs after you have received the OO’s report and is your opportunity to correct any errors and put your own evidence to the OO. You can instruct a lawyer at your own expense to draft this for you if you are not sure what needs to be said. Major errors can happen (everyone makes mistakes) and they need correcting as early as possible. A classic example is an OO who had been advised that a soldier had received a sentence ‘at the highest end of the sentencing guidelines’; he hadn’t, it was a very low sentence. When the guidelines were explained the recommended sanction was reduced and the soldier kept his rank.
If you’re preparing your own written representation, it’s important to make clear what you accept and what you deny and why. You also need to identify any new evidence you think the OO needs to consider. This will help the OO identify if more investigation is required and help the DO know what needs to be decided e.g. you accept you breached the Service Test but it’s not as bad as the OO thinks then everyone knows what they need to focus on.
Pro Tip
The impact on your pension can be massive, especially if you began your service before 2015. As soon as you know what sanction is being recommended get advice on what the impact will be and provide it to the DO. The Forces Pension Society are a great source of information on this.
Interview with the DO
This is your chance to put your side of the case to the person making the decision. You can do it verbally or in writing. Legal representation in the interview is only available in limited circumstances at your own expense (usually Termination of Service is the likely outcome). In all cases lawyers can send in written representations on your behalf.
What do you need to say to the DO?
These three most common situations:
- If you accept you have breached the Service Test, then you need to put forward mitigation. Mitigation consists of facts which make the breach less serious or about you which mean you deserve a lesser penalty e.g. losing your rank will mean you default on your mortgage or you have just made a major positive contribution to the Regiment.
- If you accept you have breached the Service Test, but you think the OO has identified the wrong sanction then you need to say why. This is a very technical area and honest mistakes can often be made here like the sentencing issue we mentioned above.
- If you do not accept the Service Test has been breached, then you need to set out why you believe you have not breached it and where the OO has made mistakes. Be polite and back up what you say with facts and documents.
Pro Tip
The impact of a reduction in rank on your finances can be huge and the DO is required to take it into account but all the DO gets is a piece of paper saying what you are paid now and what you would be paid at the next rank down. They have no information about what that means to you and your family. Provide an income and expenditure table showing how much you take home and how much is left at the end of the month.
What if you feel you got the wrong outcome?
If it all goes wrong or you realise you did not provide important information you have the right to request a review. You must apply to the DO in writing within 14 days of receiving the decision. A review is a complete rehearing of your case by a more senior officer who will make their own decisions on the case.
Three Top Tips
The three most important things to remember if you are facing MAA are:
- CONTRIBUTE: MAA is like everything else, the more you put in the better the outcome. Make sure you use your opportunities to ensure the right information is used to make the decision.
- FINANCES: Make sure you know what the impact might be as early as possible, it is possible for the impact of MAA to be measured in £100 000s. Use that information to help you decide what help if any you want.
- TIMING: If you want to put something in writing make sure it is sent to the DO well before the interview, so they have time to digest it.
Forces Legal Resources 