Antony Jordan and Department of Defence
[2015] AATA 209
•2 March 2015
[2015] AATA 209
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/3992
Re
Antony Jordan
APPLICANT
And
Department of Defence
RESPONDENT
DECISION
Tribunal G. D. Friedman, Senior Member
Date 2 March 2015 Date of written reasons 7 April 2015 Place Melbourne The Tribunal affirms the decision under review.
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G. D. Friedman, Senior Member
CATCHWORDS
FREEDOM OF INFORMATION - amendment of Certificate of Service and Army Service Record – whether document incorrect
LEGISLATION
Freedom of Information Act 1982 ss 48, 50
REASONS FOR DECISION
G. D. Friedman, Senior Member
7 April 2015
The matter before me is an application by Mr Jordan for review of a decision made by Mr Tony Corcoran, PSM, dated 27 June 2013, which is the reviewable decision in a Freedom of Information matter. That decision refused Mr Jordan’s request for an amendment of his Certificate of Service and Army Service Record. He applied under s 50 of the Freedom of Information Act 1982 (the FOI Act).
It is the Tribunal’s role to make the correct or preferable decision based on all the material before it, on the balance of probabilities. Section 48 of the FOI Act provides that a person is able to apply for an amendment or annotation to a document that is incomplete, incorrect, out of date or misleading, and has been used and is being used or is available for use by the agency or Minister for Administrative Purposes.
Section 49 sets out the manner in which the application for amendment must be made and s 50 provides the decision-making power setting out the bases on which a document can be amended, and the procedures for making the amendment. As noted in the statement of facts and contentions by the respondent, reference to s 51C is not relevant for present purposes. That refers to the transfer between agencies.
On 15 April 2013 Mr Jordan applied under the Act to have his Certificate of Service and Army Service Record amended. He requested the documents be amended to show the alteration of his Certificate of Service to record his date of discharge as 6 February 1971, and alteration of his Army Service Record to include that he officially served in Vietnam during the period December 1970 to January 1971, and to correct details regarding his discharge.
On 15 May 2013 Ms M Brandy, who is a manager of Central Army Records Office and was the authorised decision-maker under s 23 of the FOI Act, decided to amend Mr Jordan’s Certificate of Service under s 50(1)(b) of the FOI Act to reflect the correct discharge date which was 5 February 1971, but she refused the proposed amendment of Mr Jordan’s Army Service Record under s 48 of the FOI Act. Ms Brandy accepted the dates of service were incorrect, particularly the date of discharge. Those dates were corrected and a new Certificate was issued.
In relation to the record of service, Ms Brandy found that there was no evidence to support the Mr Jordan’s claim that his Army Service Record was incomplete, out of date or misleading. Specifically there was no record that he travelled to Vietnam in any official capacity as a member of the Australian Army. On 27 May 2013 Mr Jordan sought internal review of that decision not to amend the Army Service Record. As indicated, on 27 June 2013 the delegate made the reviewable decision. The Central Army Records Office arranged for the issuing of a new Certificate of Service on 28 June 2013 to record the discharge date as 5 February 1971.
The delegate in the internal review decision decided to refuse Mr Jordan’s request for amendment of the Certificate of Service of army record under s 15 in respect of service in Vietnam. The delegate found that because the Army had not recognised the period of time that Mr Jordan visited Vietnam as official service, there was no basis for the Department of Defence to amend the Army Service Record and Certificate of Service in terms of the request made by Mr Jordan. Then on 8 August 2014, Mr Jordan lodged an application with this tribunal for review.
In evidence before me Mr Jordan outlined the background to his travel to Vietnam. There is no dispute, and I accept, that for a period of several weeks Mr Jordan was in Vietnam in December 1970 and January 1971. He explained to me that he wanted to go to Vietnam and, as a Warrant Officer Class 2 on full-time service with the Citizen Military Forces, as it was then called, he was training in a pool of people to train soldiers to go to Vietnam. He was put in a group of people that were due to go to Vietnam, to serve with the Australian Army at that particular time.
He then underwent a medical examination and he was found to have early stage of cancer of the urinary tract and his medical rating was downgraded to one that rendered him unfit for service in a war zone, which meant he could not go to Vietnam. He then obtained the paperwork that was required for soldiers to go to Vietnam. He said that process was completed by himself or by others with assistance from himself. He said that the situation was not exactly the way he expressed it in his letter to the then-Minister for Defence on 19 December 2001, in which he said:
I know what I did to get to Vietnam was illegal but my desire to serve as a soldier in support of my adopted country overpowered the system of my training.
He said that the documents in fact were correct but he did concede that the way they were completed was not correct because of the medical assessment of his condition at the time. The effect was that he found himself on a C130 aircraft from Laverton to Richmond, then to Darwin to Butterworth and ended up in Vung Tau, where he commenced his service with the Australian Army in Vietnam. He worked in bomb demolition and liaison duties, and there are a number of letters of commendation that I have read about how valuable his service was to the American forces and to other people in Vietnam.
He told me that after a number of weeks in Vietnam he was injured, not seriously, but he was admitted to the field hospital in Vung Tau, and when documents relating to his medical background were obtained from Australia, it was discovered that he did not have a medical clearance to serve in a war zone. Mr Jordan explained to me he had discussions with various senior officers at the time and as a consequence he decided to come home and he returned to Australia on a Qantas flight. He told me that he has made a number of efforts since then to have his period of time in Vietnam recognised as official service. The way he put it was, he said, “Thank you is not good enough,” and he mentioned entitlements that would flow from recognition of his service in Vietnam.
So the position, as I understand it from Mr Jordan is he admits that the paperwork that he completed to get to Vietnam was not completed in the correct way, even though the paperwork itself was the correct paperwork. He had a hand in effectively sending himself to Vietnam. There is no denial of that. What is in dispute and what Mr Jordan is seeking through the Freedom of Information process is for this Tribunal to grant him recognition of that period of service in Vietnam, as official service.
I have before me exhibit R1 being an affidavit from Major-General Peter Gilmore, the Deputy Chief of the Australian Army. In the affidavit he outlined the background to this particular case in the way I have described it. He also included official policies and protocols for overseas deployment applicable at the time Mr Jordan travelled to Vietnam. After setting out the requirements for service in Vietnam at the time, he said:
I believe that the requirements applied to the applicant and his time in Vietnam.
He said:
I also believe that at least the following requirements are not met by the applicant for seeking to serve in Vietnam. For members to meet the residual service requirements, members have to have satisfactorily completed a battle proficiency course. On receipt of posting orders, units are to verify that members are eligible and minimal residual service for tours to Vietnam were normally 12 months.
He concluded that Mr Jordan did not meet the mandatory requirements set out in the annexures to his affidavit and he said:
Further, the applicant fabricated documents in order to be posted to Vietnam. As such, his time in Vietnam cannot be recognised by the Australian Army as official service. As it is not official service it is quite properly not reflected in his service record.
Major-General Gilmore concluded by saying the applicant’s Certificate of Service is not:
incomplete, incorrect or misleading. Rather, it is an accurate reflection of the applicant’s official service in the Australian Army.
The respondent has submitted to me today that there is no dispute that Mr Jordan travelled to Vietnam and participated in the various activities that he has described. The respondent says Mr Jordan’s time in Vietnam was not officially recognised because it was not official service. This is because, by Mr Jordan’s own admission, he fabricated documents to facilitate his presence in Vietnam.
It was put to me by Mr Palfrey on behalf of the respondent that whilst Mr Jordan may disagree with the policy and the explanation for it, this does not make his Certificate of Service and Army Service Record incomplete, incorrect, out of date or misleading. To the contrary, the Certificate of Service and Army Service Record reflects accurately and completely the applicant’s official service. Mr Palfrey went on to submit that for the Tribunal to amend the Certificate of Service and Army Service Record it would need to disregard the Army policy and protocols applicable to official service at the relevant time. It would also need to disregard the accepted current position in relation to official Army service as set out in the affidavit of Major-General Gilmore.
Mr Palfrey submitted that this is not the intended power of s 50 of the Act, and the Tribunal needs to be careful not to “re-write history”. Even if a decision-maker disagrees with an opinion reflected in a record, it cannot use s 50 of the FOI Act to cure what may be considered to be an incorrectly-formed opinion. Mr Palfrey submitted that whether the policy is accepted as correct policy or not, the applicant’s Certificate of Service and Army Service Record are complete and correct and accordingly do not require amendment.
I can understand Mr Jordan’s frustration over the years in that he believes he served his country well, he put his life at risk and he served with distinction as set out in the number of letters of commendation about his activities in Vietnam. The fact remains, however, that Mr Jordan has conceded that he had no official permission to be there because the documents that he used to get there were altered by him or completed by him or on his behalf. Whatever the correct description might be, he did not have official permission to travel to Vietnam because his medical assessment was not high enough to be able to satisfy the relevant authorities that he had permission to be there.
Section 50 of the FOI Act requires consideration of whether documents are complete or misleading or out of date. For Mr Jordan to succeed in altering his record to reflect the time he was in Vietnam, there is a two-step process. First he has to obtain official permission from an authority such as the Minister, the Army, Department of Defence or whoever makes the relevant decision that his time in Vietnam was official service. Once that happens, he is then able to use the FOI legislation to seek an alteration of the official record.
Until he completes the first step, he cannot succeed in the second step. As Mr Palfrey said, what this Tribunal is in effect being asked to do is to overrule the Government policy. This Tribunal is required to follow policy unless there are cogent reasons not to do so.
In my view there are no cogent reasons for the Tribunal not to follow policy in this case. In all the circumstances then, the current record of Mr Jordan’s service is as stated in the records.
That is, at the present time his period in Vietnam has not been recognised as official service. Therefore, he is not able to use the FOI Act to correct the official record because those official records at the moment are correct and complete. Therefore, Mr Jordan cannot succeed in this application and I affirm the decision under review.
I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member .............................[Sgd]...................................
Associate
Dated 7 April 2015
Date of hearing 2 March 2015 Applicant In person Advocate for the Respondent Mr M Palfrey Solicitors for the Respondent Sparke Helmore
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