Gerard Craughwell (Independent)
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I welcome the Minister of State, Deputy Paul Kehoe, to the House. While not wishing in any way to undermine the Minister of State's position, it is regrettable the senior Minister is not here to take this matter.

This matter is to discuss the outcome of a report from the Ombudsman for the Defence Forces appeal of redress of wrongs, June 2015. I acknowledge the work done by the senior Minister for the Defence Forces. As was remarked in the Representative Association of Commissioned Officers, RACO, SIGNALmagazine in December, the senior Minister has been recognised as an advocate, not just for members of the Defence Forces but for those who served in uniform in this country. The Minister of State has been to many an event involving the Defence Forces and I know both Ministers hold the Defence Forces in high esteem.

Having said that, however, I find it regrettable that the same cannot be said of some of the Department’s officials who seem unaware, even indifferent, to the needs of those who serve. We are joined in the Gallery by the complainant in the case I have raised. I am honoured and proud to represent him, given that he has given more than 40 years of distinguished service as a commissioned officer. The case I am referring to is not of the Minister of State’s making but arises from a simple but devastating administrative error. It was a simple mathematical error, an error which forced a man who served this country with distinction to retire two years early from his post as a lieutenant colonel in the Permanent Defence Forces, when, in fact, he should have gone on to serve two more years at the rank of colonel.

The commissioned officer's service commenced in 1972 and he continued to serve until he was retired forcibly in 2013. The case concerns a competition for promotion which was held in the spring of 2012. At that time, the officer in question was serving in Kosovo as an acting colonel. Following the interview process, the officer in question was placed 11th in the order of merit. The top nine applicants were promoted.

As part of the interview process, candidates were awarded marks under several headings, one of which was length of service. As was his right, the officer in question sought an analysis of the marks to be satisfied that all marks were awarded correctly. On examination, he found that two of candidates were erroneously awarded marks to which they were not entitled. The officer in question complained to his superiors that an error had been made with respect to the awarding of marks in respect of length of service. Had length of service marks been awarded correctly to all applicants, two of the applicants originally placed ahead of the complainant would have been ranked below this officer and he would have been placed ninth. As such, he would have been promoted to the rank of colonel.

The military authorities rejected the officer's complaint, stating it was without foundation and that all marks were correctly awarded. Dissatisfied with this response and having completed the internal redress process, the officer in question referred the matter to the Ombudsman for the Defence Forces, as was his right. Before his retirement, the ombudsman was a military judge, equalled only by a judge of the High Court. Furthermore, the ombudsman had, prior to his appointment as a military judge, been Deputy Judge Advocate General, making him the most senior military legal authority at that time. We can all agree the ombudsman was not only charged with adjudicating on the matter but was well qualified to do so.The first report of the ombudsman issued in March 2014. However, from evidence I have before me, it would seem that the work of the ombudsman in this case was not made easy. It would seem that he was frustrated at every turn by the military. Following his initial report in 2014, he was forced to wait almost six months for the military authorities to provide-----

Terry Brennan (Fine Gael)
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Ceithre nóiméad.

Gerard Craughwell (Independent)
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Perhaps the Acting Chairman will bear with me, this is really important. The complainant in the case is in the House and we must have deference to that. A man who has served the country with distinction is entitled to it.

Terry Brennan (Fine Gael)
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I have no doubt about that.

Gerard Craughwell (Independent)
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The length of service marks were incorrectly awarded. Two applicants were placed above this man and as a result, he was not promoted. The ombudsman's recommendation was that the administrative error should be acknowledged with a suitable expression of regret, that appropriate acknowledgement and appreciation of the complainant's long distinguished service in the Defence Forces be offered to him and that a gesture in respect of the wrong suffered by the complainant would be appropriate, having regard to the consequences of the administrative error for the complainant and the range of discretions available to the Minister. The consequences of the administrative error are massive for this officer. He has lost two years service as a colonel with all the salary conditions appropriate to the post. He has lost out on a considerable amount with respect to the gratuity difference between the lump sum for a lieutenant colonel and a colonel. He has suffered an enduring loss of pension with respect to the difference between the pension of a colonel and a lieutenant colonel. In addition, the officer would have been entitled to apply for and possibly would have served overseas at a rank senior to that of colonel, an acting rank, which would have had a considerable impact on his pension entitlements.

There is more that I need to say. As I am under pressure from the Acting Chairman, I am not going to push my luck. This is a very serious case. I hope, once we have concluded our debate, that he will agree to meet the officer in question, who is here, and have a brief word with him. I thank the Acting Chairman to whom I apologise for pushing my luck.

Paul Kehoe (Wexford, Fine Gael)
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I acknowledge the commitment of all members of the Defence Forces and the commitment of Óglaigh na hÉireann.

As the Senator will be aware, this case involves the submission by a former officer of the Permanent Defence Forces to the Ombudsman for the Defence Forces. The submission was in the form of an appeal from redress of wrongs made under section 114 of the Defence Act 1954, on foot of the considered findings of the Chief of Staff that the complainant had not been wronged in the view of the Defence Forces.

The complaint was made to the ombudsman's office on the 18 February 2013. The complainant alleges that he was wronged by an administrative error in a promotion competition held in 2012 and as a consequence, he was not promoted to the next higher rank with consequential implications relating to retirement on age grounds, gratuity and pension entitlement. By way of background, it should be noted that changes were introduced to the 2011 promotion scheme for officers which was held in March 2012. These changes were introduced following detailed negotiation and agreement with the Representative Association for Commissioned Officers under Conciliation and Council Report No. 447, CCR 447. This agreement, signed by both management and staff representatives, set out revised arrangements to be applied in respect of the application of length of service marks. A key objective in concluding this agreement was the introduction of objective assessment for promotion on merit and the elimination of seniority as a primary basis for officer promotions.

Changes in terms and conditions and procedural arrangements, having been agreed at conciliation council, are then transposed into the standing administrative instructions issued by the Chief of Staff. As will be appreciated by Senators, the transposition of such agreed arrangements through the industrial relations process into administrative arrangements can take time. Nevertheless, it is the agreement reached through the conciliation and arbitration process which must take precedence.

In this case, the relevant accompanying Defence Forces administrative instructions had not been updated at the time of the competition. While this may be a cause of concern, it is not without precedence. However, I can reasonably say that the revised arrangements under CCR 447 were well signalled to all members of the Defence Forces and well in advance of the promotion competition.

In his final report, the ombudsman concluded that the promotion competition process was administered in a procedurally unfair manner as, in his view, there was ambiguity in relation to the provisions regarding length of service marks. In addition to his findings, the ombudsman made a range of recommendations arising from this case.

The recommendations of the Ombudsman for the Defence Forces are under active consideration. I am advised that the matter may require obtaining advices from the Office of the Attorney General before any decision on the matter can be made and the issue of such advice is also under active consideration. In the light of the above, the House will appreciate, it would be not appropriate for me to comment further on this particular case at this point in time.

Terry Brennan (Fine Gael)
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Ceist gearr le do thoil.

Gerard Craughwell (Independent)
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I thank the Minister of State for his reply. His colleague in the other House, the Minister for Health, Deputy Leo Varadkar, has made the point in the medical world that we should fess up and be honest if we have made mistake and we put it right. It is grossly unfair that this man has had his life put on hold while he waits for an apology to redress the wrong that has been done to him. He had 40 years service not only in this country but abroad where he served with distinction and bravery. He came under fire in the Lebanon and in other parts of the world. This man is entitled to full and prompt action. This issue is going on since March 2014 and the final report is more than seven months old. Before he leaves office, will the Minister of State execute the findings of the ombudsman and put this matter to rest? I know he cares so I ask him to do that.

Paul Kehoe (Wexford, Fine Gael)
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I do not dispute the commitment of the gentleman in question to the Irish Defence Forces. As with all members of the Irish Defence Forces, they make a huge commitment and I do not question this gentleman's commitment. I hope the Senator will appreciate that it would not be appropriate for me to comment any further on this case as it is going through due diligence at this moment in time.

Gerard Craughwell (Independent)
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I will give the Minister of State a copy of the ombudsman's report.