ERNEST MARTIN BOOTHMAN and REPATRIATION COMMISSION
[2009] AATA 303
•1 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 303
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5150
VETERANS' APPEALS DIVISION ) Re ERNEST MARTIN BOOTHMAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop Date1 May 2009
PlacePerth
Decision The Tribunal affirms the decision under review.
..........[sgd S D Hotop]........
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements –disability pension – entitlement to claim –applicant enlisted in Australian Army on 1 April 1980 – applicant rendered defence service – applicant suffered serious neck injury in course of defence service – applicant subsequently fit for restricted duties – applicant absent without leave from 2 February 1981 – applicant discharged on 13 May 1981 on ground of absence without leave for period exceeding 3 months – applicant claimed disability pension under Pt IV of Veterans’ Entitlements Act (VE Act) – applicant’s service terminated not by reason of discharge on ground of invalidity or physical or mental incapacity to perform duties – Pt IV of VE Act does not apply to applicant – applicant not a “member of the Forces” within Pt IV of VE Act – applicant not entitled to claim disability pension under Pt IV of VE Act – decision under review affirmed
Defence Act 1903 (Cth), s 44
Veterans’ Entitlements Act 1986 (Cth), s 68(1), s 69(1) and s 70(1)
Australian Military Regulations, reg 176(1)
Re Boothman and Military Rehabilitation and Compensation Commission [2005] AATA 725
Whiteman v Secretary, Department of Veterans’ Affairs (1996) 69 FCR 510REASONS FOR DECISION
1 May 2009 Deputy President S D Hotop Introduction
1. Ernest Martin Boothman (“the applicant”) enlisted in the Australian Regular Army on 1 April 1980 (when he was 18 years of age) for a period of three years. He was, however, discharged on 13 May 1981. His period of Army service constitutes “defence service” for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”).
2. In January 2001 the applicant lodged with the Department of Veterans’ Affairs (“DVA”) a claim for disability pension under Pt IV of the VE Act respect of a neck condition and depression, but that claim was rejected by a delegate of the Repatriation Commission (“the respondent”) on 16 February 2001 on the ground that the applicant was not entitled to claim a pension under Pt IV of the VE Act because he was not a “member of the Forces” as defined in that Act.
3. On 16 May 2007 the applicant again lodged with the DVA a claim for disability pension under Pt IV of the VE Act in respect of a neck condition and depression.
4. On 30 May 2007 a delegate of the respondent decided that the applicant was not entitled to claim a pension under the VE Act because he was not a “veteran” or a “member of the Forces” as defined in that Act.
5. On 22 September 2008 the Veterans’ Review Board (“VRB”) affirmed the delegate’s decision of 30 May 2007.
6. On 23 October 2008 the applicant lodged with the Tribunal an application for review of the VRB’s decision of 22 September 2008.
The Issue
7. It is common ground that the applicant is not a “veteran” as defined in the VE Act. The sole issue for the Tribunal’s determination is whether the applicant is a “member of the Forces” – that is, a person to whom Pt IV of the VE Act applies. If the Tribunal determines that the applicant is a “member of the Forces”, he will be entitled to claim a pension under Pt IV of the VE Act. If, on the other hand, the Tribunal determines that he is not a “member of the Forces”, he will not be so entitled.
The Evidence
8. The evidence before the Tribunal comprised:
· the “T Documents” (T1–T16, pp 1–107) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· extract from the transcript of the applicant’s hearing before the Administrative Appeals Tribunal on 17 March 2004 (Exhibit A1);
· transcript of the applicant’s hearing before the VRB on 22 September 2008 (Exhibit R1); and
· the oral evidence of the applicant.
The T Documents
9. The applicant’s service medical records indicate that:
· he was admitted to Ceduna Hospital on 19 September 1980 following a motor vehicle accident on 18 September 1980 in which he suffered a neck injury, and he was discharged on 22 September 1980;
· he was admitted to 2nd Military Hospital on 21 October 1980 where he was fitted with a neck brace and underwent a tomography which demonstrated a “translucent line … extending across the base of the odontoid peg” which was described as “almost certainly represent(ing) a fracture”, and he was discharged on 18 November 1980 and certified as fit for “sedentary duties only” as from 21 November 1980;
· he was admitted to 2nd Military Hospital on 9 December 1980 for a progress tomography which showed “incomplete union of the odontoid process”, he was “asymptomatic” during his hospitalisation, and he was discharged to his unit on light duties on 16 December 1980;
· he underwent a tomography of the odontoid peg on 21 January 1981 which indicated that “some bony bridging” had occurred across the fracture site thereby indicating that union was “advancing”, but union was “not complete”. (T3, pp 12–20, 22–39)
10. The Army’s contemporaneous (handwritten) record of the applicant’s service indicates that:
· he was “AWOL” at 0730 hours on 2 February 1981;
· he was discharged on 13 May 1981 “for absence without leave for a period exceeding three months”. (T3, pp 7–8)
11. An official document recording the applicant’s discharge from service states as follows:
“MEMBER DISCHARGED IA
1 Regt No 553595 Rank PTE Name BOOTHMAN E M was discharged IA under AMR 176 (1) (q) AWOL.
2 Date of Discharge 13/5/81.
3 No Final Medical Board has therefore been convened.”
The document was signed by a person described as “Discharge Clerk” and dated 18 May 1981. (T3, p21)
12. A document headed:
“Department of Defence
ARMY RECORD OF SERVICE REPORT AS AT 30 JUNE 2002
Run Date 22/05/2007”
contains the following information:
“1 PERSONAL PARTICULARS:
-------------------------------------------------
Service Number 553595
Rank Private
Name Ernest Martin Boothman
Age at Discharge 19 Yrs
…
Corps NON CORPS
Unit IA List 2 MD2 SUPPLEMENTARY PARTICULARS:
----------------------------------------------------------
Enlistment Date 01-04-1980
Discharge Date 13-05-1981
…
3 ENLIST/DISCH/TRANSFER HISTORY
-------------------------------------------------------------CEASED13 May 81 ARAS (0) DA17 RESIGNATION IS ACCEPTED (TO ACCEPT AN EMPLOYMENT OPPORTUNITY)
…
18LEAVE HISTORY
---------------------------------
AWOL02 Feb 81 Commenced 0730 HRS Ceased 0000 HRS
…” (T3, pp 1–3)
The VRB hearing
13. A transcript of the applicant’s hearing before the VRB on 22 September 2008 includes the following exchanges between the applicant and the VRB members:
“ …
MR BOOTHMAN: If I stayed in the army, I would be discharged medically today. I would not still be in the army. I’m only 45.
BOARD MEMBER: Yes
MR BOOTHMAN: Sorry, I’m 46.
BOARD MEMBER: Yes, but with respect the board has – the board must apply the legislation that’s in front of it and it really can’t embark on that sort of speculative ---
MR BOOTHMAN: But it’s still medical. Medically I am in the condition and it hasn’t changed since September 1980. I have a broken neck. I’ve been incapacitated since that day. I’m entitled to compensation. I don’t want compensation, I want a pension.
BOARD MEMBER: But again it goes – I have to take you back to what the problem the board has. The board has legislation in front of it which it must apply.
MR BOOTHMAN: There’s the medical aspect of it.
BOARD MEMBER: No, the legal aspect of it and the legal aspect of it is: did you serve three years in the army? The answer is no. Did you leave the army as a consequence of a medical discharge?” The answer is no. So where does the board go from there?
MR BOOTHMAN: I left because of a medical condition.
BOARD MEMBER: No, it’s not a question of why you left, it’s a question of whether the army caused you to leave by discharging you medically.
…
MR BOOTHMAN: What does it say in that Act about medical reports?
BOARD MEMBER: It says you must serve three years in the army or be discharged from the army on medical grounds. You were neither. That’s the problem. Not your neck, that’s the problem. I’m not trying to be difficult, but that’s the issue. What was your understanding of why you were discharged?
MR BOOTHMAN: I was discharged because I was AWOL.
BOARD MEMBER: Okay, there are certainly references to that in your file, right. There is also a reference that says, ‘Resignation is accepted (to accept an employment opportunity).’ So is that totally wrong, erroneous?
MR BOOTHMAN: Absolutely. When did I ---
BOARD MEMBER: I just said, it’s just a printout of your record, I just put it to you, just so that you understand ---
MR BOOTHMAN: Never – I’ve never heard that before. That’s the first time I’ve heard anyone say that.
…” (Exhibit R1, pp14, 16)
The applicant’s evidence
14. The applicant’s evidence at the hearing before the Tribunal may be summarised as follows:
· he joined the Army in April 1980 and, after completing recruit training and transport training, he was posted to 1 Transport Squadron at Holsworthy in New South Wales;
· prior to taking up his posting he flew to Kalgoorlie in Western Australia, where his parents then lived, in order to collect his car and belongings for the purpose of driving to Holsworthy to commence duties in his new posting;
· in the course of his journey across the Nullarbor Plain in September 1980 he was involved in a motor vehicle accident in which he suffered a neck injury;
· he was admitted to hospital in South Australia and at that time it was thought that he had suffered a “whiplash” injury to his neck;
· he was subsequently admitted to the military hospital in New South Wales and it was then determined, a couple of months after the accident, that he had fractured the odontoid peg in his neck, and he was then put in a neck brace which he wore for about 5 weeks;
· at that time he was advised by a neurosurgeon that his injury would eventually heal and he would return to normal health;
· he returned to 1 Transport Squadron, wearing a neck brace, where he was placed on restricted duties but he found that it was very painful to sit for long periods of time;
· he became very sad because he wanted to do driving duties in the Army, not sedentary office duties;
· on one occasion, when the other squadron members were out on manoeuvres and only he and another soldier were in the barracks, he received a homosexual proposition from the other soldier which he rejected;
· he then asked a corporal on gate duties what he should do and the corporal advised him to leave his Army gear there and “go home” and said that “the Army won’t come looking for you”;
· he then left the barracks and drove back to Kalgoorlie and made no contact with the Defence Department;
· he did part-time work in Kalgoorlie until 1993 when he obtained a full-time job with Hamersley Iron;
· he worked for Hamersley Iron until 2001 when “things got worse” and he then claimed compensation for the neck injury which he suffered in September 1980;
· in 2005 the Administrative Appeals Tribunal (“AAT”) decided that his ongoing incapacity for work resulted from the neck injury which he suffered in September 1980 and that he was entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 in respect of that injury (see Re Boothman and Military Rehabilitation and Compensation Commission [2005] AATA 725);
· Dr Woodland, a neurosurgeon, gave evidence at the AAT hearing in 2004 that the neck injury which he suffered in September 1980 was a serious injury and that, in at least 50% of cases, that type of injury does not heal, whereas he had been advised by the neurosurgeon who was treating him in late 1980 that his injury would heal;
· Dr Woodland also said that it takes up to 12 months to make a “full diagnosis” of such a condition;
· he was not advised by the corporal on gate duties at the barracks to get a medical discharge, and he was never contacted by the Army or the Defence Department after he left the barracks and he was never advised by them that he should request a medical discharge;
· he did not want to get out of the Army and he “walked away” from the Army because he was injured, not because he did not like the Army.
The Relevant Legislation
15. The relevant provisions of the VE Act are as follows:
“Part IV – Pensions for members of Defence Force or Peacekeeping Force and their dependants
Division 1– Interpretation
68Interpretation
(1) In this Part, unless the contrary intention appears:
…
member of the Forces means a person to whom this Part applies by virtue of section 69 or 69A.
…
69 Application of Part to members of the Forces
(1) Subject to this section, where a person:
(a)has served in the Defence Force for a continuous period that commenced on or after 7 December 1972 and before the terminating date; or
(b)is serving in the Defence Force on or after the terminating date and has so served continuously since a date before that date;
this Part applies to the person:
(c)if the person:
(i)has served on continuous full-time service as a member of the Defence Force after 6 December 1972; and
(ii)has, whether before or after that date, completed 3 years’ effective full-time service as such a member; or
(d)if:
(i)the person has served as a member of the Defence Force under an engagement to serve for a period of continuous full-time service of not less than 3 years; and
(ii)the person’s service as such a member was terminated before the person had completed 3 years’ effective full-time service as a member of the Defence Force, but after 6 December 1972, by reason of the person’s death or the person’s discharge on the ground of invalidity or physical or mental incapacity to perform duties; or
…
Division 2– Eligibility for Pension
70Eligibility for pension under this Part
(1)Where:
(a) the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or
(b) a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) in the case of the death of the member – pension by way of compensation to the dependants of the member; or
(d) in the case of the incapacity of the member – pension by way of compensation to the member;
in accordance with this Act.
…”
16. The Defence Act 1903 (Cth), as in force at the time of the applicant’s Army service, relevantly provided:
“ 44 A soldier may at any time be discharged by such authority and for such reasons as are prescribed, notwithstanding –
(a)that he has not completed the period of service for which he is, or is to be deemed to have been, engaged or re-engaged to serve; or
(b) that he has not attained the age prescribed for his compulsory retirement.”
17. The Australian Military Regulations, as in force under the Defence Act 1903 at the time of the applicant’s Army service, relevantly provided:
“ Reasons for discharge of a soldier
176 (1) For the purposes of section 44 of the Act, each of the following reasons is a reason for the discharge of a soldier:
(a) that the soldier has requested his discharge;
…
(h) that the soldier is medically unfit;
…
(q) that the soldier has been absent without leave for a period exceeding 3 months or has suffered frequent convictions for having been absent without leave;
…”
Analysis
18. The question whether the applicant is a “member of the Forces” – that is, a person to whom Pt IV of the VE Act applies – falls to be determined under s 69(1) of that Act. It is common ground that the applicant satisfies para (a), and does not satisfy para (c), of s 69(1). As regards para (d), it is common ground that the applicant satisfies subpara (i). The critical matter for the Tribunal’s determination is whether the applicant satisfies subpara (ii). It is common ground that the applicant’s service as a member of the Defence Force was terminated after 6 December 1972 before he had completed 3 years’ effective full-time service. The question is, however, whether his service was terminated “by reason of” his “discharge on the ground of invalidity or physical … incapacity to perform duties”, within the meaning of subpara (ii) of s 69(1)(d) of the VE Act.
19. The applicant acknowledged that the official ground for his discharge from the Army on 13 May 1981 was that he had been absent without leave for a period exceeding 3 months. He submitted, however, that the Tribunal could, and should, look behind the official ground for his discharge having regard to the fact that he was medically unfit by reason of a serious neck injury, of which the Army was well aware, at that time. He submitted that the Army could, and should, have then discharged him on medical grounds. He further submitted that the Army had acted unlawfully in discharging him on a non-medical ground at a time when it knew he had a serious neck injury and before sufficient time had elapsed for it to become known whether or not that injury had healed or was likely to heal.
20. The respondent acknowledged, on the authority of the decision of the Federal Court of Australia in Whiteman v Secretary, Department of Veterans’ Affairs (1996) 69 FCR 510, that it was permissible for the Tribunal to look behind the official ground on which the applicant was discharged from the Army in order to satisfy itself as to the actual ground of his discharge. The respondent submitted, however, that, in the circumstances of the applicant’s case, there was no factual basis on which the Tribunal could be satisfied that the applicant had been discharged on medical grounds, and that the sole ground on which the Tribunal could be satisfied that he had been discharged was that stated in his Army service records, namely, that he had been absent without leave for a period exceeding 3 months.
21. The Tribunal accepts the respondent’s submission. In the Tribunal’s opinion there is no evidence before it which indicates or suggests that, when the applicant was discharged from the Army on 13 May 1981, the ground – or even a ground – on which he was being discharged was, in reality, his physical incapacity to perform duties by reason of his serious neck condition. On the contrary, the medical information regarding the applicant’s neck condition which was available to the Army at that time was to the effect that his odontoid peg fracture was gradually healing and that he was then fit for restricted, sedentary duties. According to the applicant’s own evidence, the specialist medical advice he was given at that time was that his injury would eventually heal, and he was in fact performing restricted duties at the barracks up until the time he decided to go absent without leave in early February 1981.
22. The Tribunal notes that the applicant’s submission does not go so far as to assert that he was in fact discharged from the Army on medical grounds; rather, his submission goes no further than to assert that the Army should have discharged him on medical grounds. Indeed, in his evidence at the VRB hearing and at the hearing before the Tribunal, the applicant acknowledged that he had been discharged from the Army because he was absent without leave.
23. The Tribunal does not accept the applicant’s submission that it was unlawful for the Army to discharge him on the ground that he was absent without leave instead of discharging him on medical grounds when it knew that he was medically unfit. According to the applicant’s Army service records he was absent without leave from 2 February 1981 and, by reason thereof, he was, in accordance with reg 176(1)(q) of the Australian Military Regulations, liable to be discharged from the Army after the expiration of 3 months thereafter. The Tribunal is satisfied, therefore, that the applicant was validly discharged from the Army, pursuant to reg 176(1)(q) of the Australian Military Regulations, on 13 May 1981. Had the applicant not been absent without leave, he might have ultimately been discharged on the ground of medical unfitness but his voluntary absence without leave for a period exceeding 3 months forestalled that possibility and itself provided a ground for his discharge under reg 176(1)(q) of the Australian Military Regulations upon which the Army was lawfully entitled to, and did, act.
24. The Tribunal notes the document, referred to in paragraph 12 above, which indicates (inter alia) that the applicant’s Army service ceased on 13 May 1981 when his resignation (“to accept an employment opportunity”) was accepted. That document also refers to the applicant’s being “AWOL” from 0730 hours on 2 February 1981 but it does so only for the purpose of recording his “leave history”. Although that document purports on its face to be a Department of Defence document comprising a report of the Army record of service of the applicant as at 30 June 2002, the information which it contains regarding the ground or reason for the applicant’s discharge on 13 May 1981 is inconsistent with the relevant information contained in the official Department of Defence records regarding the applicant’s discharge on 13 May 1981 which were created contemporaneously. The latter records unequivocally indicate that the applicant was discharged on 13 May 1981 on the ground of absence without leave for a period exceeding 3 months (see paragraphs 10 and 11 above). As regards the formerly-mentioned document, the Tribunal notes that it is in the form of an unsigned computer printout produced on 22 May 2007 and, accordingly, it cannot be regarded as more reliable than the contemporaneous official records. The Tribunal, therefore, has no hesitation in giving conclusive weight to the latter documentation, and it accepts the information contained therein as factually accurate. In any event, the contents of the abovementioned computer printout relating to the circumstances of the applicant’s discharge do not assist the applicant’s case, and neither he nor the respondent sought to rely on it.
25. Finally, the Tribunal notes that it has been determined that the applicant is entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) in respect of the neck injury which he sustained in September 1980. Although the applicant submitted that that was “strong evidence” that he should be entitled to a disability pension under the VE Act, the Tribunal regards that submission as misconceived simply because the applicant’s entitlement to compensation under the SRC Act has no relevance to the fundamental requirement for entitlement to claim a disability pension under Pt IV of the VE Act, namely, that the claimant must be a “member of the Forces” (as defined in s 68(1) of that Act) for the purposes of Pt IV of that Act.
Conclusion
26. Having regard to the abovementioned considerations, the Tribunal finds that the applicant’s service as a member of the Defence Force was terminated on 13 May 1981 by reason of his discharge on that date, on the ground of absence without leave for a period exceeding 3 months, pursuant to reg 176(1)(q) of the Australian Military Regulations. The Tribunal finds, therefore, that the termination of the applicant’s service on that date was not “by reason of [his] death or [his] discharge on the ground of invalidity or physical or mental incapacity to perform duties”, within the meaning of s 69(1)(d)(ii) of the VE Act. Accordingly, s 69(1) of the VE Act is not satisfied in the applicant’s case. It is common ground that none of the other provisions of s 69 of the VE Act is applicable in this case, and that s 69A of the VE Act is inapplicable in this case.
27. It follows that Pt IV of the VE Act does not apply to the applicant and that he is, therefore, not a “member of the Forces” (as defined in s 68(1) of that Act) and is accordingly not entitled to claim a disability pension under Pt IV of that Act.
Decision
28. For the above reasons the Tribunal affirms the decision under review.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ...............[sgd D Brodie]........................
Associate
Date of Hearing 20 April 2009
Date of Decision 1 May 2009
Representative of the Applicant Self-representedRepresentative of the Respondent Mr C Ponnuthurai
Department of Veterans' Affairs
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