Chong and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 536
•27 July 2016
Chong and Repatriation Commission (Veterans’ entitlements) [2016] AATA 536 (27 July 2016)
Division
VETERANS' APPEALS DIVISION
File Number
2015/3804
Re
Wonho Chong
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Lt Col R Ormston (Rtd) (Member)Date 27 July 2016 Place Adelaide The decision under review is affirmed, that is, the claim for recognition of qualifying service as an allied veteran is refused.
.......... [Sgd] ....................................................
Deputy President K Bean
CATCHWORDS
VETERANS' AFFAIRS – whether an allied veteran – whether appointed as a member of a defence force established by an allied country – meaning of ‘appointed’ – whether qualifying service has been rendered – decision under review affirmed.
LEGISLATION
Veterans' Entitlements Act 1986, ss 5B(1), 5C(1) and 7A(1)
CASES
Re McCoy and Repatriation Commission (2004) 84 ALD 198
REASONS FOR DECISION
Deputy President K Bean
Lt Col R Ormston (Rtd) (Member)27 July 2016
The applicant, Mr Wonho Chong, worked for the US military during the Korean War, from about August 1950 to March 1951.
On 5 November 2014, Mr Chong lodged a claim seeking recognition of qualifying service as an allied veteran, which was refused by the Repatriation Commission on 21 January 2015. On 23 March 2015, Mr Chong sought a review of that decision, which was affirmed by a delegate of the Repatriation Commission on 4 June 2015.
On 28 July 2015, Mr Chong applied to this Tribunal seeking review of the decision by the delegate of the Repatriation Commission, and giving rise to these proceedings.
THE LEGAL FRAMEWORK
Eligibility for a number of entitlements under the Veterans’ Entitlements Act 1986 (the VEA) depends on a veteran having “qualifying service”. “Qualifying service” is relevantly defined in the VEA as follows:
7A Qualifying service
(1)For the purposes of Parts III and VA and sections 85 and 118V, a person has rendered qualifying service:
…
(c)if the person is an allied veteran who, during a period of hostilities, has, as a member of the defence force established by an allied country, rendered, in connection with a war, or war-like operations, in which the Naval, Military or Air Forces of Australia were engaged, service in an area within or outside the country in which the person enlisted in those forces, being service in respect of which the person incurred danger from hostile forces of the enemy;
…
Section 5C of the VEA relevantly defines “allied veteran” and “defence force established by an allied country” as follows:
5C Eligibility related definitions
(1) In this Act, unless the contrary intention appears:
…
allied veteran means a person:
(a)who has been appointed or enlisted as a member of the defence force established by an allied country; and
(b)who has rendered continuous full-time service as such a member during a period of hostilities;
but does not include a person who has served at any time:
(c)in the forces of a country that was, at that time, at war with Australia, or in forces engaged in supporting or assisting the forces of such a country; or
(d)in forces that were, at that time, engaged in war-like operations against the Naval, Military or Air Forces of Australia.
….
defence force established by an allied country means:
(a)the regular naval, military or air forces; and
(b)the nursing or auxiliary services of the regular naval, military or air forces; and
(c)the women's branch of the regular naval, military or air forces;
raised by an allied country and operated by the country with regular military-like lines of command, that is to say, raised and operated in such a manner that the members of those forces and services:
(d)were formally appointed to, or enlisted in, those forces or services; and
(e)were required to wear uniforms or insignia distinguishing them as members of those forces or services; and
(f)were required to carry arms openly; and
(g)were subject to the rules and conventions of warfare.
Section 5B of the VEA relevantly defines “period of hostilities” in relation to the Korean War as:
5BWar and operational area related definitions
(1)In this Act, unless the contrary intention appears:
….
period of hostilities means:
…
(c)the period of hostilities in respect of Korea from 27 June 1950 to 19 April 1956 (both included);
…
THE ISSUES
In determining whether Mr Chong rendered qualifying service, it follows that in general terms the issues before us are:
(a)whether Mr Chong was appointed or enlisted as a member of the defence force established by an allied country; and
(b)whether Mr Chong rendered full-time continuous service as such a member during a period of hostilities.
We note there is no dispute between the parties that Mr Chong worked for the US military on a full-time basis during a period of hostilities as defined by the VEA, and Mr Chong does not contend that he was ‘enlisted’ by the US Army. The issue therefore is solely whether Mr Chong was ‘appointed’ as a member of the defence force established by an allied country, i.e. the US Army, which turns in part on how the term ‘appointed’ should be construed.
THE EVIDENCE
In his evidence to the Tribunal, supplementing his written statements,[1] Mr Chong said that he was 16 years old at the outbreak of the Korean War in June 1950, living with his parents in Busan (also known as Pusan, in what is now South Korea). He said the offensive by the North created an emergency situation in the South, which necessitated the closure of his school. Mr Chong said that because he had basic English language skills, he was able to obtain casual work as a labourer at the US 8th Army’s ammunition depot at Haeundae, being employed on a day-to-day basis.
[1] Exhibit 1, T8/22 and Exhibit 2.
Mr Chong said that he struggled physically to cope with the heavy lifting typically required of day labourers. He was relieved, therefore, that after a few days he and his friend Yu were selected to work with the 630th Ammunition Company, in a supply room under the supervision of Sergeant Albert Pickles. This became a regular job from about August 1950, “with good wages” and where Sergeant Pickles also “taught me how to drive [a] jeep at our compound”. During this period, Mr Chong returned to his parents’ home each night.
Mr Chong said that when US and allied military forces began a counter-offensive against the North, it became evident that the 630th Ammunition Company would be required to move northwards from Busan, in support of the allied forces. He said that Sergeant Pickles was keen for him to continue working and went with Mr Chong to his parents’ home to seek their consent for him to accompany the unit northwards, which they gave. He recalls that he signed some papers but cannot remember any details.
Mr Chong said that he accompanied the 630th Ammunition Company northwards in September 1950, advancing to Kaechon Kunuri (some 70 kilometres north of Pyongyang, in what is now North Korea). He said that he was effectively no different from the enlisted men of the unit, in that he wore a US-style uniform, carried a weapon when leaving the base, ate in the same mess, attended muster parades, and was under the direct supervision of Sergeant Pickles. He said that he did not receive pay on a regular basis because there was nothing to spend it on when the unit was on operations.
Mr Chong said that after several months on the front line, the unit hurriedly withdrew to around Seoul. He said that by February or March 1951, some of the labour-related duties within the 630th Ammunition Company were being handed over to Korean nationals working for KATUSA (a Korean service corps operating as an auxiliary to the South Korean Army). Mr Chong said that he was required to train one such person to take over his job as supply section assistant before Sergeant Pickles would allow him to leave the unit and return home, which he did in March 1951.
Mr Chong said that on leaving the unit, he received a lump-sum payment from Sergeant Pickles for his work from September 1950 to March 1951. He cannot recall the amount but recalls it was more than he expected. He also recalls being presented with a ‘ribbon bar’ by Sergeant Pickles, which he thinks was a US award for service in the Korean War.[2] He said that he never received the actual medal, nor has he ever attempted to claim the medal from the US Government.
[2] Exhibit 4 is a picture of the ribbon, together with explanatory notes regarding the US Korean War Service medal.
Mr Chong has a ‘record of service’ from the South Korean Government,[3] which shows his period of war involvement as “August 1950 to March 1951”, his regiment as “American 630 Ammunition Company” and his status as “a civilian attached to the military”. Under cross-examination by Mr Crowe, representing the respondent, Mr Chong contended that the translation regarding his status could be interpreted as “serving as auxiliary”, although he conceded that the literal translation is “non-soldier”.
[3] Exhibit 3.
Mr Chong also produced a medal issued to him by the current South Korean Government, commemorating the 60th anniversary of the Korean War.[4] The Tribunal also noted that Mr Chong subsequently served in the South Korean Army from 1953 to 1956, in what was understood to be a 3-year period of conscription required of all South Korean male nationals.
[4] Exhibit 6.
Mr Chong’s evidence was largely corroborated by Mr Sung Duk Hong, a Korean national currently living in South Korea. In his evidence to the Tribunal, supplementing his written statements,[5] Mr Hong said that he first met Mr Chong in early 1951, when the unit was stationed in Seoul. He said that he worked for the 630th Ammunition Company in the motor pool and provided a photograph of himself alongside what appears to be a US Army truck, with the letters ‘630AM’ on its front bumper.[6] He said that Mr Chong was already in the unit when he joined. He corroborated that Mr Chong was required to wear a US-style uniform and carry a weapon. He said that there were probably 15-17 Korean nationals working in the unit during that time, including several in the mess halls. He recalled being paid on a monthly basis.
[5] Exhibits 5 and 8.
[6] Exhibit 7, photo of Sung Duk Hong alongside US Army vehicle, with the caption ‘Hong Sung-Duck (sic) 630 Ammunition Company 1950 Gaechon Gunuri’.
CONTENTIONS
Mr Maynard, advocate for the applicant, argued that Mr Chong’s ‘appointment’ needs to be seen in the context of the circumstances at the time. He contended that Mr Chong signed engagement papers in September 1950, effectively becoming a member of an allied force, whereby he was required to live on base, wear a uniform and carry a weapon, and conform to the same rules and regulations as enlisted US soldiers, which are three of the four conditions contained within the definition of “defence force established by an allied country” at paragraphs (e), (f) and (g) of the definition at subs 5C(1) of the VEA.
Mr Maynard also noted that the Department of Veterans’ Affairs had not at that stage received a reply to its enquiry to the US National Personnel Records Center[7] as to whether it had any record of Mr Chong’s appointment and whether he was eligible for the award of the US Korean War Service medal. However, he argued that if Mr Chong’s evidence of having been presented with a ribbon bar by Sergeant Pickles was correct, the Tribunal could deduce that Sergeant Pickles would not have awarded the ribbon to someone not entitled to the award, and that Mr Chong’s status was something more than a civilian employed by the US military.
[7] Exhibit 9.
In support of his contention that the circumstances of Mr Chong’s appointment need to be considered in the context of the emergencies within the country at the outbreak of the Korean War, Mr Maynard cited Re McCoy and Repatriation Commission, where the Tribunal held that at “[a] liberal interpretation of the legislation gives the tribunal considerable flexibility and discretion to look at the other factors raised by the applicant which may bring him within the definition of a member of the defence force in s 5C(1)”.[8]
[8] Re McCoy and Repatriation Commission (2004) 84 ALD 198 at [27].
Mr Crowe argued that there was no factual basis for Mr Chong’s claim to have been ‘appointed’ to the US Army or any other service of the US armed forces. Rather, he contended that Mr Chong was employed as a civilian by the 630th Ammunition Company, as shown on Mr Chong’s record of service. He contended that once the unit moved northwards, Mr Chong was required to live on base simply because there would have been no alternative.
Mr Crowe argued that there was no evidence that Mr Chong was ‘required’ to wear a uniform; rather, he would have needed a durable form of clothing and it was convenient for his workplace to provide him with a uniform. Similarly, Mr Crowe suggested there was no evidence that Mr Chong was required to carry a weapon; rather, he would have been provided with a weapon, when he left the base in operational areas, for his personal protection.
Along similar lines, Mr Crowe argued that there was no evidence that Mr Chong was subject to military discipline, such as addressing or saluting senior ranks, or being required to obey military orders. Rather, he argued that Mr Chong was simply required to respond to day-to-day work-related instructions. Mr Crowe similarly argued that the requirement for Mr Chong to train a KATUSA replacement did not make his own position a military one, even if the person being trained held a military rank.
Mr Crowe also contended that the McCoy case and Mr Chong’s application were substantially different because the former related to differentiating between service in the Australian permanent forces and an Australian auxiliary service, whereas Mr Chong’s claim relates to qualifying service in a defence force established by an allied country. Mr Crowe asserted that a case relating to service in the Australian merchant navy cannot be applied to Mr Chong’s situation.
Mr Crowe conceded that if the Department of Veterans’ Affairs’ enquiry to the US National Personnel Records Center revealed that Mr Chong was eligible for the award of the US Korean War Service medal, he would accept Mr Chong’s claim. He noted, however, that some 80 per cent of the records held by the National Personnel Records Center were destroyed by a fire some years ago, which reduced the prospect that the Center would be able to verify Mr Chong’s claim. Mr Crowe also noted that in the tendered documents relating to the Department’s letter to the National Personnel Records Center,[9] an embedded website referred to archival records being available only in respect of “enlisted personnel” or “officers”, inferring that it was not possible to be ‘appointed’ to the US Army.
[9] Exhibit 9.
We note that, subsequent to the hearing, the respondent received a questionnaire from the US National Personnel Records Center, requesting further information. The associated communication also stated:
… We are unable to locate a record with the information provided in your original inquiry OR the record needed to answer your inquiry was lost in the July 1973 fire that destroyed millions of records at the National Personnel Records Center. The records stored in the area which suffered the most damage in the fire were those of Army veterans discharged or deceased between November 1, 1912, and December 31, 1959, AND Air Force veterans discharged, deceased, or retired before January 1, 1964, whose names come alphabetically after Hubbard, James E.
The questionnaire was provided with a view to obtaining information which would allow the Center to make use of alternative resources. However, we also note that both parties subsequently agreed that we should proceed to make our Decision without waiting for further information, and no further information has become available prior to us handing down our Decision.
CONSIDERATION
In considering the evidence, we accept Mr Chong’s contention that the outbreak of the Korean War would have created an emergency situation wherein work-related placements could well have been made without recourse to the paperwork and formal agreements expected in peace-time. We also obviously accept and recognise that Mr Chong served his country and made a valued contribution to the allied war effort during the Korean War.
There are, however, some aspects of the evidence which we consider point to his employment as a civilian rather than his appointment to an allied defence force. In the McCoy case, the Tribunal held that “the word ‘appointed’ should be given the meaning shown in the Macquarie Dictionary … [namely] ‘to choose and put into a position’”.[10] While it could be argued that that is exactly what Sergeant Pickles did in relation to Mr Chong, we consider the words imply a process involving a degree of formality, both in relation to selection and confirmation by an appropriate authority, which we consider would likely need to be exercised by a military person more senior than a sergeant, even under the exigencies of war. We note that in the McCoy case, the evidence was that Mr McCoy was “commissioned as a sub-lieutenant into the RANR(S) on 5 December 1967” and he was also “appointed as 2nd officer” on the relevant vessel.[11] A construction requiring a degree of formality is also consistent with subs 5C(1), which defines a “defence force established by an allied country” by reference to whether members were “formally appointed … or enlisted” (paragraph (d)).
[10] Re McCoy and Repatriation Commission (2004) 84 ALD 198 at [30].
[11] At [15].
We also note that Mr Chong says that he was paid “good wages” while working initially at Busan in the period July-August 1950. However, once the 630th Ammunition Company deployed northwards, he says that his pay was withheld until he received a lump-sum payment on the termination of his employment, which was “much more” than he expected. Contrarily, Mr Hong said that he was paid on a monthly basis for the two years that he was employed by the 630th Ammunition Company. Even allowing for the war-time situation, Mr Chong’s pay arrangements seem rather informal, and not consistent with what might have been expected had he been ‘appointed’ rather than employed.
Both Mr Chong and Mr Hong also said that there were a number of other Korean nationals working with the 630th Ammunition Company, with Mr Chong saying 4-5 people on the same contractual basis as himself, as well as some employed on a casual basis on kitchen duties, and Mr Hong saying 15-17 in total, which included 4-5 in the mess hall, as well as some in the motor pool. We appreciate that casual workers may well have been employed on relatively menial tasks, such as in the mess halls, when the unit was based in Busan or, indeed, near Seoul after withdrawing from operations in northern Korea. However, it seems somewhat anomalous that the unit, while on operations from September 1950 until early 1951, would have had a mix of different contractual conditions for Korean nationals, with some ‘appointed’ and some ‘employed’, given that the working conditions of all would likely have been nearly identical, regardless of their particular skills or tasks.
We also have some reservations regarding the award of a ribbon bar to Mr Chong by Sergeant Pickles, which Mr Chong contends was for the US Korean War Service medal. In addition to the observation by Mr Crowe we have referred to regarding appointment to the US Army, the Tribunal expressed scepticism to the parties, based on the professional experience of one of its Members, Lieutenant Colonel Ormston, that a campaign medal would be issued in-theatre, within three months of a presidential decree authorising the issue of the medal,[12] or that it would be presented to a Korean national by a US Army sergeant. We also note that Mr Chong has made no attempt since to claim the medal itself from the appropriate US authorities, notwithstanding the enquiry made by the Department of Veterans’ Affairs to the US National Personnel Records Center on his behalf.
[12] Exhibit 4 indicates that the relevant Executive Order was made by President Truman on 8 November 1950.
CONCLUSION
We have accordingly concluded, on balance, that there is insufficient evidence for us to be satisfied that Mr Chong was appointed as a member of the defence force established by an allied country pursuant to s 5C of the VEA.
DECISION
The decision under review is affirmed, that is, the claim for recognition of qualifying service as an allied veteran is refused.
I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean and Lt Col R Ormston (Rtd) (Member) .......... [Sgd] ........................................
Administrative Assistant
Dated 27 July 2016
Dates of hearing 19 April 2016 and 11 May 2016 Advocate for the Applicant Mr P Maynard Advocate for the Respondent Mr A Crowe
Department of Veterans' Affairs Advocacy Section
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