Hunt and Repatriation Commission

[2004] AATA 105

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 105

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/53

VETERANS' APPEALS DIVISION		)
Re		GRAHAME HUNT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr O Rinaudo, Member

Date6 February 2004 

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

....................(Sgd).....................

O Rinaudo
  Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – eligibility – qualifying service – whether applicant was “allotted for service” as part of Base Squadron Ubon RAAF – applicant assisted the unit whilst awaiting transportation back to his own unit – not part of the unit – no warlike service - decision affirmed

Veterans’ Entitlements Act 1986 s 7A

Re Lee and Repatriation Commission [2002] AATA 316

Re Goble and Repatriation Commission (1992) 29 ALD 259

Re Marsh and Repatriation Commission (1986) 4 AAR 227

REASONS FOR DECISION

6 February 2004  Mr O Rinaudo, Member    

Decision Under Review

1.      The applicant seeks review of a decision made by the Repatriation Commission on 16 September 2002 which determined that he did not render qualifying service.

History

2.      The applicant, Grahame Hunt, was born on 12 June 1942 and served with the Royal Australian Air Force from 22 October 1965 until 21 October 1971 as a Telecommunications Operator.  The applicant was attached to Snowgum Force and stationed at Ubon in Thailand from 9 February 1968 until 29 March 1968.

3.      Snowgum Force was part of an Australian Joint Forces Detachment Exercise called Ramasoon.  Exercise Ramasoon was a South East Asian Treaty Organisation controlled command post exercise designated to test communications between the forces of SEATO member countries.  Snowgum Force was to leave Thailand on 18 and 20 March 1968.  This was the end of Exercise Ramasoon. 

4.      The applicant was admitted to the Ubon Sick Quarters on 14 March 1968 suffering from mumps. The applicant was not fit to travel home with the other members of Snowgum Force and remained in Ubon until 27 March 1968.  The applicant was discharged from Sick Quarters on 22 March 1968. 

Issue

5.      The issue for the Tribunal to determine is whether the applicant undertook qualifying service whilst working in a Communications Centre of Base Squadron Ubon under command and control of the Commanding Officer of Base Squadron Ubon between 22 March 1968 (being the date of discharge from Sick Quarters) and 27 March 1968 (being the date he departed for Australia).

Evidence

6.      The applicant gave evidence to the Tribunal.  Documentary evidence consisted of the following exhibits:

Exhibit 1        “T” Documents

Exhibit 2        Statement of Grahame Hunt dated 18 September 2003

Exhibit 3Statement of Wing Commander Retired Alan Wilson dated 26 November 2003

Exhibit 4Determination of Warlike Service dated 4 January 2001

Exhibit 5Service on Exercise Ramasoon in Thailand in 1968 (2 pages)

Exhibit 6Record of Service

7.      The applicant gave evidence that he arrived in Thailand in 1968 as part of the Snowgum Force, being a part of Exercise Ramasoon.  He was a Radio Operator.  On 14 March 1968 he contracted mumps and was placed in hospital.  He remained in hospital until 22 March 1968.  He returned to Australia on 27 March 1968.  He said that between his discharge from hospital on 22 March 1968 and his flight home on 27 March 1968, he worked in the Communications Department at the Ubon Air Force Base.  He said that Wing Commander Alan Wilson was the only person who visited him in hospital.  He was the Department Head. 

8.      The applicant stated that when he was discharged from hospital, Wing Commander Wilson had ordered him to undertake duties which included duty from 4 pm to midnight. He was involved in message handling. It was directly in connection with work for the unit.  He said that there was a red alert and he was required to take cover in a bunker.  He said there was only one other soldier with him in the bunker and that there were only two members on afternoon shift.

9.      Under cross-examination the applicant said that he was aware that he had missed flying out with the rest of the crew by only a short time.  He thinks that it was only two days later that he got out of hospital.

10.     He confirmed that Wing Commander Wilson was responsible for both the Base and the Snowgum Force. 

11.     He confirmed that, as set out at Folio 43 of the “T” Documents, his service record confirmed that he was attached to Snowgum Force from 9 February 1968 to 29 March 1968.

12.     The applicant also relied on the statement of retired Wing Commander Alan Wilson (Exhibit 3) which states as follows:

“I recall that Grahame was attached to Exercise Ramasoon for a time and that he contracted mumps and spent time in hospital.  I also recall that he spent time in the Communications Centre for the exercise as did several staff attached in.  There were some staff on the exercise ‘up country’ and some, including me, remained at Ubon.

I am not sure of Grahame’s actual attachment dates, but have personal documents attaching me to Snow Gum Force, Exercise Ramasoon from 17 Feb to 16 Mar 68 while on strength of BSUBON from 16 Nov 67 and I took up duties in Melbourne on 16 May 68.  Even though attached, I remained at Ubon apart from managerial visits ‘up country’..  I also understand his contention that he worked in the Communications Centre after his discharge from hospital.  The whole base was a compound of a few acres, the airmens’ bunks and mess complex were only a few yards from the Communications Centre, and after a few hours in the local village, there would have been little else to do other than contribute with professional mates in Communications Centre duties.

The Base has been recognised for the Active Service Medal, and this is certainly appropriate.  It was a major USAF base associated with the Viet Nam war, with many sorties being flown daily.  The Communications Centre and most RAAF facilities were surrounded by sand bags 8 – 10 feet high, with observation/pill box/safety bunkers on perimeter fences.  Alert exercises were called routinely to ensure that personnel were trained and ready and several ‘real’ alerts were sounded and acted on in my six months there.”

Legislation

13. The legislation relevant to this application is contained in section 7A of the Veterans’ Entitlements Act 1986 (“the Act”). Section 7A states 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:

(a)       if the person has, as a member of the Defence Force:

(i)rendered service, during a period of hostilities specified in paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1), at sea, in the field or in the air in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when the person incurred danger from hostile forces of the enemy in that area or on that aircraft or ship; or

(ii)rendered service after 29 October 1945 in respect of which the person has been awarded, or has become eligible to be awarded, the Naval General Service Medal or the General Service Medal (Army and Royal Air Force) with the Minesweeping 1945-51 Clasp, the Bomb-Mine Clearance 1945-53 Clasp, the Bomb and Mine Clearance 1945-49 Clasp or the Bomb and Mine Clearance 1945-56 Clasp; or

(iii)rendered service outside Australia in an area described in column 1 of Schedule 2 during the period specified in column 2 of that Schedule opposite to that description, as a member of a unit of the Defence Force that was allotted for duty, or as a person who was allotted for duty, in that area; or

(iv)      rendered warlike service; or

(b)if, during a period of hostilities, the person has, as a member of the defence force established by a Commonwealth country, rendered, in connection with war or war-like operations in which the Naval, Military or Air Forces of Australia were engaged:

(i)service, in an area outside that country, at a time when the person incurred danger from hostile forces of the enemy in that area; or

(ii)service within that country, being service in respect of which the person has been awarded, or has become eligible to be awarded, a campaign medal; or

(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; or

(d)if the person was, during a period of hostilities specified in paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1), employed by the Commonwealth on a special mission outside Australia, and, in the course of carrying out that mission, incurred danger from hostile forces of the enemy; or

(e)if the person is an eligible civilian within the meaning of subsection 5C(1) who was, during a period of hostilities specified in paragraph 5B(1)(b) of the definition of period of hostilities, detained by the enemy; or

(f)if the person is a person in respect of whom a pension is payable in pursuance of subsection 13(6); or

(g)if the person is an Australian mariner as defined by subsection 5C(1) who, in the course of:

(i)any service rendered by the person in employment of a kind specified in paragraph (a), (b), (c), (e) or (g) of that definition; or

(ii)any service rendered by the person as a pilot referred to in paragraph (d) of that definition; or

(iii)any service rendered by the person as a member or employee of the Commonwealth Salvage Board;

was on a ship or in an area at a time when the person incurred danger from hostile forces of the enemy on the ship or in the area, as the case may be; or

(h)if the person is an allied mariner who, in the course of any service rendered by the person in employment of a kind to which paragraphs (a) and (b) of the definition of allied mariner in subsection 5C(1) applies:

(i)        was detained by the enemy; or

(ii)was in an area service in which would, if the person had been a member of the Defence Force, have entitled the person to the award of a campaign medal and incurred, while he or she was in that area, danger from hostile forces of the enemy.

(2)       In subparagraphs (1)(b)(ii) and (1)(h)(ii):

campaign medal, in relation to service during the period of World War 2 from its commencement to and including 29 October 1945, means:

(a)       any of the following medals:

(i)        1939-45 Star;

(ii)       Atlantic Star;

(iii)      Air Crew Europe Star;

(iv)      Africa Star;

(v)       Pacific Star;

(vi)      Burma Star;

(vii)     Italy Star;

(viii)     France and Germany Star; or

(b)any other medal declared by the regulations to be a campaign medal in relation to service during that period.”

14.     Reference should also be had to section 5C which states:

“warlike service means service in the Defence Force of a kind determined in writing by the Minister for Defence to be warlike service.”

and section 6F which states:

“A member of the Defence Force is taken to have been rendering operational service during any period of warlike service or non-warlike service of the member.”

15.     The Minister for Veterans’ Affairs determined on 4 January 2001 that:

“…a member of the Defence Force in North East Thailand (including Ubon) at any time during the period from and including 25 June 1965 to an including 31 August 1968 while a part of a unit specified below is warlike service for the purposes of subsection 5C(1) of the Veterans’ Entitlements Act 1986.”

16.     Base Squadron Ubon RAAF is a unit specified in that determination.

Discussion and Determination

17.     The Tribunal was grateful to the advocate for the applicant who made extensive submissions and provided the Tribunal with a written copy of those submissions.  The Tribunal was also grateful for the submissions, including written submissions, provided by the advocate for the respondent. 

18.     The applicant’s advocate stated that it was his hope that he might persuade the Tribunal that the applicant was a part of the specified unit – Base Squadron Ubon RAAF – for some days between 22 March 1968 and 27 March 1968.  There did not appear to be any dispute that the applicant was indeed in Ubon during that period. 

19.     The applicant’s advocate took issue with the contents of a letter written to Mr Hunt by the Director, Salary and Allowances, Defence Personnel Executive on 12 February 2002 which reads in part:

“You have indicated that during the period of the exercise you became ill with the mumps and during the time of your illness and recuperation were transferred to Base Squadron Ubon, Thailand.  If this were the case you would have been temporarily transferred to Ubon as a guest or visitor and recorded at that location purely for victualling purposes.  Although you may have remained at that location for a period of time you were not on the posted strength of any of the units at Ubon for purposes specific to the mission, ie, providing security to the Thailand air base.  Therefore, you are not eligible to be allotted as part of Base Squadron Ubon.”

20.     In response to this statement, the applicant’s advocate stated:

“All personnel of Snowgum Force except the applicant departed Ubon by RAAF C130 Hercules transport on flights on 18^th and 20^th March 1968.  From the date of his discharge from sick Quarters, the applicant was not a part of Snowgum Force and was rendering service under the military command of the Commanding Officer Base Squadron Ubon RAAF.  His duties were those of his professional mustering as a Telecommunications Operator in the Base Squadron Ubon RAAF Communications Centre in connection with the specific mission of the Base Squadron – providing security to the Ubon Air Base.”

21.     The applicant’s advocate noted in support of his contention that the applicant had become part of the Base Squadron Ubon RAAF, that:

“Any dereliction of duty on the applicant’s part during the passage of that period of service would have been a matter for disciplinary action by his contemporary Commanding Officer – i.e., the Commanding Officer Base Squadron Ubon RAAF.  During that period his RAAF pay and allowances were in return for his professional duties performed in the Base Squadron ComCen in support of the Base Squadron’s specific mission.”

and concluded that:

“Therefore, it is my submission that as a matter of fact the Applicant Grahame Hunt, formerly Telecommunications Operator No A113159 rendered service which satisfies sub sections 5C(1), 7A(1)(iii) and 7A(1)(iv) of the Veterans’ Entitlements Act (1986) and the Determination of Warlike Service dated 4 January 2001 determined by the Minister for Veterans’ Affairs for and on behalf of the Minister for Defence because:

He rendered warlike service as a member of the Defence Force as part of a unit which was allotted for duty in North East Thailand including Ubon during the period from and including 25 June 1965 and including 31 August 1968.”

22.     In response, the respondent’s advocate noted that:

“The Defence Department explicitly utilises the concepts of posting when advising the applicant that he was not ‘part of’ Base Squadron Ubon because he was a visitor and not part of its ‘posted strength’: [T18] Founding the interpretation of ‘part of’ on official posting and attachment, gives a Warlike service determination a certain foundation – reference to a close group of individuals easily identified from historical defence records.”

23.     In this regard, the Tribunal was referred to the decision of Re Lee and Repatriation Commission [2002] AATA 316. In that case the Tribunal rejected the application of a veteran on the grounds that the applicant or his unit had to be allotted for duty in an area included on any written instrument issued by the Defence Force for the person to have rendered eligible qualifying service.

24.     The respondent’s advocate confirmed that Exercise Ramasoon had been specifically considered for inclusion in the warlike service determination of 4 January 2001.  However, the defence department had refused to include it on the basis that service did not match “warlike service” definitions. The respondent further contended that the applicant was never part of the Base Squadron Ubon RAAF and concluded:

“So we have a choice between settled meanings of  ‘part of a unit’ which accord with Government intentions and Defence administrative practices, or an open ended meaning which implies administrative uncertainty and a likely undermining of the Minister’s authority to determine what is Warlike service.”

25.     The applicant’s advocate referred the Tribunal to the decisions in Re Goble and Repatriation Commission (1992) 29 ALD 259 and Re Marsh and Repatriation Commission (1986) 4 AAR 227. Whilst the Tribunal notes the comments made in those cases with respect to serving in a theatre of war and the inherent danger, neither of those authorities is relevant in the present case. The threshold question here is whether the applicant meets the definition set out in section 7A(a)(a)(iii) as the applicant was not a member of a unit that was allotted for duty or a person that was allotted for duty as defined by section 5B(2) of the Act in an operational area as defined. For the applicant is succeed he would have had to have been allotted for service as part of the Base Squadron Ubon RAAF.

26.     The mere fact that he did not go home with the rest of the detachment after the completion of the Snowgum Force exercise, and remained in Ubon between his discharge from hospital and the first available flight to Australia, does not make him part of the Base Squadron Ubon RAAF contingent.

27.     It is noted in the statement of Wing Commander Wilson that he ordered the applicant to work in the Communications Centre.  His statement said:

“I also understand his contention that he worked in the Communications Centre after his discharge from hospital.”

28.     It may be, as Wing Commander Wilson suggests, that the applicant found himself with “little else to do” and decided to help out but this does not make him part of the allotted unit.  It makes no difference that he may have been exposed to some danger, which is not clear on the evidence, whilst he remained in Ubon. 

29.     Presumably, whilst he was at Ubon Base Hospital the level of danger would have been identical whilst all of the Snowgum Force was still in Ubon.  His status did not change when the rest of the Snowgum Force left Ubon.  He remained a member of the Snowgum Force until he departed some four or five days later. 

30.     Accordingly, the Tribunal does not accept the contention made on behalf of the applicant and affirms the decision under review.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  9 December 2003
Date of Decision  6 February 2004
For the Applicant  Mr L Wilson, Advocate
For the Respondent                  Mr A Harris, Departmental Advocate