Gregory Burgess and Repatriation Commission
[2013] AATA 645
[2013] AATA 645
Division VETERANS' APPEALS DIVISION File Number
2013/1741
Re
Gregory Burgess
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 12 September 2013 Place Brisbane The decision under review is affirmed.
.......................[SGD].................................................
Dr M Denovan, Member
CATCHWORDS
VETERANS' AFFAIRS – Benefits and entitlements – Eligibility for pension – Whether applicant was a “member of the Forces” – Applicant did not complete period of service – Not entitled to any benefits – Decision affirmed
LEGISLATION
National Service Act 1951-1971 (Cth) ss 27, 35
Veterans’ Entitlement Act 1986 (Cth) s 69
REASONS FOR DECISION
Dr M Denovan, Member
12 September 2013
INTRODUCTION
Mr Burgess (“the applicant”) was conscripted under the repealed National Service Act1951-1971 (Cth)[1](“National Service Act”) to serve for a period of 18 months of consecutive service with the Australian Army as a national serviceman. He enlisted on
29 September 1971, and was discharged from the Australian Army before the end of the 18 months, on 9 February 1973.[2]
[1] As amended by the National Services Act 1971 (Cth).
[2] Exhibit 1 folio 39 and 40.
On 18 June 2010, the applicant applied for a disability pension under the Veteran’s Entitlement Act 1986 (Cth) (“the Act”). On 27 July 2010, this application was rejected by the Repatriation Commission (“the respondent”) on the grounds that he was not a member of the forces as defined in the Act and therefore not entitled to claim benefits under the Act.
The Veterans’ Review Board affirmed that decision on 14 February 2013.
The applicant applied to this Tribunal for review on 29 April 2013.
LEGISLATION AND ISSUES
To be eligible to claim under the Act a national serviceman must, inter alia, have commenced serving in the Regular Army Supplement immediately before 7 December 1972, and on or after that date completed the period of service for which the person was deemed to have been engaged to serve.[3]
[3] Section 69(1)(f) of the Act also provides that a person whose service was terminated for reason of death or on the ground of invalidity or physical or mental incapacity may be eligible for benefits even though they did not complete the full period of service.
The term ‘deemed to have been engaged to serve’ is derived from s 27(1) of the National Service Act. That section indicates the period of engagement for national servicemen was 18 months.
It is not in dispute that the applicant was engaged, and thereby deemed to serve, for a period of 18 months. Nor is it in dispute that he commenced serving on 29 September 1971, and was discharged from the Australian Army on 9 February 1972,[4] some seven weeks prior to the completion of his 18-month engagement.
[4] Exhibit 1 folio 39 and 40.
Mr Chris Burgess, brother of the applicant represented him at the hearing. Mr Chris Burgess argued that after the Whitlam government announced the end of liability under the National Service Act, the applicant was given only two choices; that was to either leave immediately or re-enlist for another three years. It was argued that the applicant was not given the option of completing his term of service. Mr Chris Burgess also contends that the applicant’s discharge was not legal. He referred me to the applicant’s interim discharge certificate, which indicates he was discharged on the grounds of exceptional hardship.
Section 35B(5A) of the National Service Act reads:
Where
(a) a national serviceman has been granted leave without pay for periods amounting in the aggregate to not less than two years on the ground that rendering of the service that he was liable to render under this Act was imposing or would impose exceptional hardship on him or his parents or dependants ; and
(b) The Military Board, or a person authorised by the Military Board, has no reason to believe that the circumstances that led to the grant of leave will not continue and is satisfied that the national serviceman should, for that reason be discharged,
the national serviceman may be discharged from the Military Forces and may be so discharged on the ground of exceptional hardship.
Mr Chris Burgess contends the applicant’s discharge was illegal because there is no evidence that either paras (5A)(a) or (b) are satisfied. He argues that there is no evidence that the applicant’s application for two years leave without pay was accepted, and further, as the applicant was not genuinely suffering from extreme hardship the leave should not have been granted.
Mr Kelly for the respondent, contends that the administrative policies and expediencies of the Department of Defence post 6 December 1972 in discharging national servicemen who elected not to see out the terms of their service is not an issue in the matter.
The issue that I must decide is whether the applicant engaged in eligible service within the meaning of the Act.
TRIBUNAL’S FINDING
Does Mr Burgess have eligible defence service within the meaning of the Act?
On 5 December 1972 the government announced liability for call-up under the National Service Act ended that day. On 6 December 1972 the Deputy Prime Minster Mr Barnard announced that the government would release as quickly as possible all national servicemen who did not want to complete their term of service. He said that national servicemen who completed their term of service would be provided two additional benefits; the War Service Homes entitlement and the right to elect for Repatriation Benefits for disabilities caused by military service.
Mr Bernard made it clear national servicemen would have the option of remaining in the Army until the completion of their 18 months service in an ABC interview given on
5 December 1972, the transcript of which was provided by the applicant.[5]
[5] Exhibit 4.
6 Ibid.
The applicant gave evidence at the hearing that he recalled being told by his Commanding Officer (“CO”) that he had two options; he could either leave immediately or he could re-enlist for a further three years. He did not want to re-enlist so he elected to discharge. He said he had a lot of mental blanks, and little recollection of events around the period of time of his discharge.
I accept the applicant does not recall all the details of events around the time of discharge, as it was a very long time ago. I do not accept that he was unaware at the time that he had an option to remain in the Army until he completed his 18 months of service. Given the option was published in the popular media, I expect the options national servicemen had before them was a matter widely discussed in Army circles at the time.
Even if the applicant was unaware of his options, and unaware of the loss of benefits that went with early discharge, that is not a matter than can affect my decision. There is no discretion in the Act which allows me to make a finding that but for the applicant’s lack of information, he would have completed his 18-month period of service, and is therefore entitled to benefits. Nor is there discretion in the Act which allows me to find a person is entitled to benefits because his discharge prior to the end of the deemed period of service, was illegal. I will however, for the sake of completeness, briefly comment on that issue.
On 11 December 1972, the applicant signed an application for two years leave without pay on the grounds of exceptional hardship.[6] The applicant told me at the hearing he does not recall applying for two years leave without pay, but accepts it is his signature on the application. He remembers being told he was going to be discharged on compassionate grounds.
The absence of definitive material confirming the applicant’s application for two years leave without pay was granted does not support a contention that his application was not granted. There is no evidence to suggest the application was rejected. There is evidence which suggests the application was likely accepted. Firstly, Major Fitzsimon, the applicant’s CO at the time, gave evidence at the hearing that applications for leave and discharge on compassionate grounds would have been viewed favourably after the government ceased liability under the National Service Act in December 1972. Secondly, he was given leave without pay and was then discharged on the grounds of extreme hardship. This suggests his application was approved. There is no evidence which supports the applicant’s claim that the officer who authorised his discharge should have known the applicant misrepresented his personal circumstances when he applied for leave without pay. I conclude that the applicant was lawfully discharged.
On 11 December 1972 the applicant also signed a form of indemnity, which stated that his period of National Service had not expired, and in which he acknowledged that he was still subject to military law.[7] Mr Chris Burgess argued that this form indicates the applicant completed his period of service. I disagree. The signing of this indemnity form is entirely consistent with the applicant having been on leave without pay, but still subject to military law, until he was discharged on 9 February 1973.
[7] Exhibit 4.
As the applicant did not complete the 18 month period he was deemed to serve, he does not satisfy the requirements of s 69(1)(f) of the Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member ...........................[SGD].............................................
Associate
Dated 12 September 2013
Date of hearing 30 August 2013 Advocate for the Applicant Mr Chris Burgess For the Respondent Mr Jeff Kelly, Departmental Advocate
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