Case No B 452

Armed Forces of Malta

Reluctance by AFM captain to sit for promotion examinations

The complaint

An officer serving as a captain in the Armed Forces of Malta sought the intervention of the Ombudsman in connection with his complaint that he had not been promoted to the rank of major with the rest of his colleagues who had enlisted in the AFM in the same cadet intake.

In his statement of case to the Ombudsman, the complainant explained that a few weeks before the issue of the promotion order for officers in the Armed Forces, he had been informed by the Commander that he did not feature in a list of officers who were being recommended for promotion to the rank of major and whose names were being submitted for the consideration of the Office of the Prime Minister. His exclusion from this list was attributed to his reluctance and his failure to sit for examinations that had been held some time earlier for the promotion of captains to the next higher rank. He was informed that it was this insistence on his part not to sit for these examinations that had blocked his prospects for career advancement and had rendered him ineligible for promotion.

The complainant pointed out that during his meeting with the Commander he was told that, together with another officer who held the same views, he was to be given another opportunity to sit for the next session of the promotion examinations. He was also warned that if he missed this chance, he would either be discharged from the Armed Forces or else obliged to resign. At this stage, the complainant decided to submit his application for the upcoming promotion examinations.

In his letter to the Ombudsman, the complainant explained the reasons for his conduct. He stated that he felt that different weights and measures were being applied in the award of promotions to AFM officers and was of the view that the new policies and procedures that were being adopted by the Armed Forces regarding promotions were unfair.

The complainant drew the attention of the Ombudsman to regulation 6(1) of the Malta Armed Forces Act (Appointments and Conditions of Service of the Regular Force Regulations) which states that promotion to the rank of major “shall be made subject to recommendation based on efficiency, seniority and selection to fill a vacancy”. He maintained that his refusal to sit for promotion examinations arose partly from his conviction that he already met these criteria especially since, in addition to his normal duties as a captain in the Armed Forces, he had been given various other assignments which, according to the AFM establishment, should have been carried out by an officer holding the rank of major. He insisted that he had always carried out these additional duties thoroughly and to the best of his ability.

The complainant stated, however, that he was particularly irked by the introduction of a new requirement whereby as from 1998 officers holding the rank of captain had to pass a practical and a written examination in order to be eligible for promotion to the rank of major. He pointed out that officers serving as captain who had joined the Armed Forces under a cadet intake merely one year prior to his own intake, had not been asked to take these examinations and had been promoted on the basis of AFM regulations regarding promotions for officers commissioned from the ranks that did not envisage any such tests.

Facts of the case

From official file records made available by the AFM, the Ombudsman ascertained that in May 1997 the government had approved the introduction, as from 1998, of practical and written promotion examinations for officers serving in the Armed Forces. This new requirement covered lieutenants seeking promotion to captain and captains seeking advancement to major.

All officers affected by these new rules were informed that the fundamental aim of this new system was to consolidate professional standards and to bring the AFM in line with other modern armed forces. The attention of these officers was also drawn to the fact that it was the responsibility of each individual officer to prepare himself for these examinations, although the AFM was prepared to organise ad hoc instruction courses and lectures to assist officers to develop their professional knowledge and enhance their technical ability to assume wider responsibilities in their career with a view to improving their prospects for promotion.

When the first session of examinations for the promotion of captains to the rank of major was being organised in 1998, the complainant and another fellow officer, however, decided not to attend courses organised by the AFM and not to sit for the examinations. This happened again when the second round of examinations for promotion to the rank of major was held in 2000, despite repeated warnings by the superiors of these two officers that failure to pass the mandatory promotion examinations would render them both ineligible for promotion.

File records also showed that when the complainant notified his superiors that he would not attend lectures and would not take the examinations, he was duly informed in writing that this was his last opportunity to sit for these examinations before the due date of promotion to major. He was even warned that, in line with the approved promotion criteria, if he did not pass these examinations by the day in question, he would again not be recommended for promotion. Despite these repeated warnings, however, the complainant stuck to his decision.

Faced with this situation, the complainant’s superiors excluded his name from the list of AFM captains who were recommended for promotion to the rank of major early in 2001. This list included seven other officers who belonged to the same intake as the complainant but who had raised no objection to sitting for promotion examinations and had been successful.

Since it had been decided to allow each officer three attempts to pass the promotion examinations, the complainant was again advised in March 2001 that the AFM planned to hold another practical and written examination session in 2002/2003. The Commander of the Armed Forces also informed him that he would be considered eligible to be recommended for promotion if he were successful in these examinations, although in his case the effective date of his promotion would be the date when he had passed these tests, since the due date for his promotion to the rank of major had already passed.

On this occasion, the complainant and his colleague were also warned by the Commander of the Armed Forces that in the event that they failed to pass these examinations within a period of three years from their promotion date that was originally due in January 2001, he would be obliged to recommend their compulsory premature retirement in terms of regulation 14 (1) and (2) of the Malta Armed Forces Act (Appointments and Conditions of Service of the Regular Force Regulations) whereby “14(1) An officer may be called upon to retire or resign or may be removed at any time by the Commander with the approval of the Minister on grounds of inefficiency, unsuitability or misconduct.

14(2) An officer may be called upon to retire or may be removed in manner aforesaid on grounds of non-recommendation or failure to pass promotion examination in such circumstances and under such conditions as the Minister may determine.”

Records again showed that although the complainant and his colleague were given a deadline within which to present their submissions, they both failed to give their reply in time to the Commander of the Armed Forces. Some three months after this meeting with the Commander, however, the complainant finally indicated that he was willing to attend courses organised by the AFM and to sit for the next round of promotion examinations.

Outcome

Following careful consideration of the various issues connected with this case, the Ombudsman accepted the competence of the AFM authorities to introduce new procedures as from 1997 for promotion to the rank of major including practical and written examinations. The Ombudsman was of the view that AFM regulations regarding promotions allow the AFM authorities full discretion on how to determine the merits of an officer in order to fill vacancies and these regulations do not in any way exclude resort to written and practical tests.

The Ombudsman also ruled that although on previous occasions no written tests were held for promotion to the rank of captain of officers who had joined the AFM in the first place as officer cadets as well as of those who were promoted through the ranks, this should not preclude the introduction of new methods or of different procedures for the assessment of officers for the purpose of promotion to the next higher rank. This development was acceptable especially at a time when the AFM was seeking to raise professional standards by initiatives aimed at widening the technical, military and intellectual abilities of its officers.

In view of these considerations, the Ombudsman did not uphold the complainant’s claim that he had been treated unfairly and found no evidence to indicate that an act of injustice had been committed in his regard by the AFM authorities.