The High Court has ordered that a Defence Forces private continue to receive his salary while he challenges a discharge issued one year before the end of his five-year term of service.
Malcolm Gannon joined the Defence Forces aged 19 in August 2001. He was discharged on 26 July 2005 under Regulation 58(r), which applies where a soldier’s services are considered no longer required and no other reason for discharge is available.
The judgment records that Gannon had extensive absences through sickness and some absence without leave. He had also been temporarily medically downgraded and excused armed duties. Gannon said he had developed a social anxiety disorder and had been referred by an Army medical officer to psychiatrist Dr John Quinn.
The Defence Forces maintained that Gannon had a poor attendance and conduct record, had been warned about his performance and had been clearly informed of the proposed discharge and his right to make representations.
Gannon argued that his medical history may instead have brought him within Regulation 58(p), which provides for discharge on medical grounds following a Medical Board recommendation. That distinction mattered because a discharge under Regulation 58(r) was described by the court as discreditable and potentially damaging to future employment prospects.
Mr Justice Peart stressed that he was not deciding the dispute finally. At this stage, the question was whether Gannon had raised a serious issue requiring a full trial.
The judge held that it was arguable that insufficient consideration had been given to whether Gannon’s illness explained his poor attendance and whether a medical ground for discharge should have been considered before resorting to Regulation 58(r).
The court also rejected an argument that Gannon was obliged to pursue the case only through judicial review rather than ordinary civil proceedings.
Given Gannon’s lack of income apart from social welfare, limited qualifications outside the Army and responsibility for a partner and young child, the balance favoured interim relief. He was therefore to remain on salary pending the full hearing.