JOHN TRINDER and REPATRIATION COMMISSION
[2012] AATA 624
•18 September 2012
[2012] AATA 624
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Number(s) | 2011/5177 |
| Re | JOHN TRINDER |
| APPLICANT | |
| And | REPATRIATION COMMISSION |
| RESPONDENT |
DECISION
| Tribunal | PROFESSOR RM CREYKE, SENIOR MEMBER |
| Date | 18 September 2012 |
| Place | Canberra |
The decision under review is affirmed.
.............................[sgd]...........................................
PROFESSOR RM CREYKE, SENIOR MEMBER
CATCHWORDS
VETERAN’S AFFAIRS – veterans’ entitlements – application for Gold Card – qualifying service – operational service – allotment – instrument of allotment – unofficial involvement – evidence of allotment
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), Part II
CASES
Re Revill and Repatriation Commission (unreported, M J Sassella, Senior Member, 9 May 2011)
SECONDARY MATERIALS
Naval Forces Vietnam Monthly Historical Summary, (May 1966).
REASONS FOR DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER
Mr John Trinder, born 1933, enlisted on 28 January 1952 with the Royal Australian Air Force as a Cadet Aircrew, and rose to the rank of Air Commodore. He was discharged on 6 April 1988. Mr Trinder is in receipt of a disability pension under Part II of the Veterans’ Entitlements Act 1986 (Cth) (Act) for a number of accepted conditions.
On 10 March 2011 Mr Trinder made an application for a Gold Card. The application is dependent on him having qualifying service in accordance with section 7A of the Act. If he so qualifies he is then entitled to a service pension under Part III of the Act and, in turn, to a Gold Card entitling him to compensation for medical treatment (section 85(4A) of the Act).
The application was rejected by a delegate of the Repatriation Commission (Commission) on 24 June 2011 because he did not have qualifying service. On 19 July 2011 Mr Trinder sought review by a Service Pension Review Officer.
On 26 September 2011 Mr Trinder was notified by a Senior Delegate of the Commission that his application had been unsuccessful.
On 28 November 2011, Mr Trinder appealed to the Tribunal. The matter was heard in Canberra on 21 August 2012.
BACKGROUND
Mr Trinder served in the Royal Australian Air Force (RAAF) between January 1952 and April 1988 when he was discharged. He served as a maritime pilot between 1958 and 1971, before being posted to several staff appointments prior to discharge.
In 1966, Mr Trinder was posted to Headquarters Operational Command, at Glenbrook, NSW. During that posting Mr Trinder was sent to Nowra, NSW on temporary loan to the Australian Joint Anti-Submarine School. His secondment was to an element of No 11 Squadron, RAAF. From there Mr Trinder was seconded to Sangley Point, Philippines for South East Asian Treaty Organisation (SEATO) duties. In this capacity he acted as Maritime Air Controller of PSM Marlin aircraft for Exercise Sea Imp, a SEATO tactical warfare anti-submarine exercise, the headquarters of which were then based at Sangley Point.
From 30 May until 3 June 1966 Mr Trinder and two other Australians, were sent to serve on USS Salisbury Sound, a seaplane tender, to undertake Air Controller duties for the operational phase of Exercise Sea Imp. The USS Salisbury Sound was anchored at Cam Ranh Bay, off the coast of Vietnam. Rear Admiral Isaman of the US Navy and some 10-15 staff, were located on USS Salisbury Sound at that time. Rear Admiral Isaman was Deputy Director of Exercise Sea Imp, and Commander, Task Force 72 for Operation Market Time. The Commander of Exercise Sea Imp, Rear Admiral CP Mills RN, directed the operation from a Royal Navy vessel, the HMS Devonshire.
The USS Salisbury Sound had set up a sea-drome in support of Operation Market Time, a US Navy exercise in support of the Vietnam War, the purpose of which was to block enemy troops and supplies from North Vietnam entering South Vietnam by sea. Mr Trinder contended that as the vessel had been involved in Operation Market Time, and as he had stood watch while on board, he had contributed to that operation.
Mr Trinder was on board USS Salisbury Sound from 30 May 1966 to 8 June 1966 when the vessel reached Bangkok. However, it was only stationed at Cam Ranh Bay until 3 June. In other words, any watch duties by Mr Trinder would have occurred between 30 May1966 and 3 June 1966. According to evidence provided by Mr Trinder from US declassified records,[1] fifty-two Market Time flights were flown by Task Group 72.5 during the period 16-30 May 1966.
[1] Naval Forces Vietnam Monthly Historical Summary, May 1966, 12.
As it transpired, despite having Rear Admiral Isaman and staff aboard USS Salisbury Sound, ostensibly for the purpose of Exercise Sea Imp, the ship did not participate in Exercise Sea Imp. It only joined the fleet which had been involved at the end of the exercise on 6 June 1966, when the vessels sailed upriver to reach Bangkok on 8 June 1966. A Writeway Research report dated 20 April 2012 stated that 'USN Monthly Historical Summaries for May and June 1966 clearly record that Market Time had priority' for USS Salisbury Sound.
Previous applications
In 2005 Mr Trinder sought recognition of his service as Special Overseas Service under the Repatriation (Special Overseas Service) Act 1962 (Cth). That application was also unsuccessful. Mr Trinder had earlier applied for recognition of his service while at Sangley Point as entitling him to recognition of qualifying service, a decision finally rejected by the Tribunal on 28 October 2008.
Mr Trinder had also made multiple applications for medallic recognition of his service while overseas, on the ground that receipt of certain medals would indicate he had qualifying service. On each occasion he had not succeeded. On 8 February 2011, the Defence Honours and Awards Tribunal had found that Air Commodore Trinder (Retd):
·Was not eligible for the award of the ASM [Australian Service Medal] 1945-75 with Clasp ‘Special Ops’ in respect of his service during Operation Gay;
·Was not eligible for the award of ASM 1945-75 with Clasp ‘Special Ops’ in respect of his service during Exercise Sea Lion or for specific Neptune covert surveillance operations in 1960; and
·Was not eligible for the AASM [Australian Active Service Medal] 1945-75, the VM [Vietnam Medal] or the VLSM [Vietnam Logistic and Support Medal] in respect of his service within the Vietnam operational area.
Mr Trinder had also sought recognition of qualifying service on the ground that he was in either 10 or 11 Squadron during Operation Trimdon which supported the transport of Australian troops to Vietnam in HMAS Sydney in May 1965. The Writeway Research service did not find any indication that Mr Trinder had been involved with either squadron at the relevant time.
In December 2008 Mr Trinder had also sought to be allotted retrospectively for his service during Exercise Sea Imp. That application was rejected on the basis that his service did not meet the criteria for allotment for special duty.
In relation to these applications, on 16 June 2009, Major-General BA Power, and Air Marshal MD Binkin, Chief of Air Force, rejected his contentions, noting that Mr Trinder:
· had not been involved in Operation Market Time while deployed to USS Salisbury Sound in support of operations in Vietnam;
· his service during Operation Sea Imp did not meet the criteria for allotment for Special Duty as required under the Repatriation (Special Overseas Service) Act 1962 (Cth); and
· his service did not meet the definition of being an Aircrew member of the Australian Air Force Detachment, Sangley Point.
Mr Trinder was notified of this outcome on 7 July 2009 by Air Vice-Marshal GC Brown, Acting Chief of Air Force.
Current application
Mr Trinder pursued his claim contending that he had been allotted for duty in Vietnam on two grounds: that he was on the posted strength of Headquarters Operational Command Unit, Glenbrook, NSW; and that he was an ‘Aircrew member of Australian Air Force Detachment Sangley Point. The Instrument of Allotment on which he was claiming retrospective allotment was dated 23 December 1997, and was taken to have commenced on 13 May 1997. The Instrument stated as relevant in Schedule B that allotment was made of 'Members of the following units of the Defence Force: ... (i) Headquarters Operational Command Unit Glenbrook' or ... Aircrew members of Australian Air Force Detachment Sangley Point'.
The first claim was rejected by the Commission on the basis that Mr Trinder did not serve in support of Australian forces then engaged in the Vietnam conflict since Exercise Sea Imp was a SEATO exercise and not related to the Vietnam War. The second was rejected on 28 October 2008, because he was not an ‘aircrew’ as that term is used in the Instrument of Allotment. The finding that Mr Trinder was not ‘aircrew’ within the expression in the Instrument of Allotment was upheld by the Administrative Appeals Tribunal on 28 October 2008. Mr Trinder did not seek to re-open that issue at this most recent Tribunal hearing.
Mr Trinder made a further application for qualifying service in relation to his service on board USS Salisbury Sound while it was stationed at Cam Ranh Bay. The decision under review by a Service Pension Review Officer on 26 September 2011 made the following findings:
Air Commodore Trinder was in the Vietnam area of operations between 30 May and 3 June 1966. During this period he was embarked in the United States Navy seaplane tender USS Salisbury Sound, stationed at Cam Ranh Bay. Air Commodore Trinder embarked in USS Salisbury Sound to undertake Maritime Air Controller duties in support of Exercise Sea Imp.
Exercise Sea Imp was a multinational anti-submarine warfare exercise conducted under the auspices of SEATO. The exercise took place in the South China Sea between 26 May and 6 June 1966. The post exercise report identifies USS Salisbury Sound as a participant in the exercise. The report also states that the exercise maritime headquarters, staffed exclusively by aviators from the United States Navy, Royal Air Force and Royal Australian Air Force, was initially situated at Sangley Point in the Philippines but subsequently transferred to USS Salisbury Sound on 30 May 1966.
The Defence Department’s position is that Air Commodore Trinder is not entitled to medal recognition for Exercise Sea Imp as he did not serve in support of Australian forces then engaged in the Vietnam conflict. This position has held firm since December 1987, when the then Director General of Personnel Services - Air Force advised Air Commodore Trinder that his service in Vietnamese waters was not in any operational or support role in relation to the Vietnam War.
Subsequent evidence
A Writeway Military Historical Research Report, commissioned by the Department of Veterans’ Affairs on 21 March 2012, was provided on 20 April 2012. That report concluded in relation to the question whether the service by Air Commodore Trinder (Retd) on the USS Salisbury Sound in June 1966 met the criteria for qualifying service that the veteran that Mr Trinder:
Was temporarily loaned from the Australian Joint Anti-submarine School at Nowra, NSW to an element of No 11 Squadron RAAF [Royal Australian Air Force] based at Sangley Point in the Philippines... this secondment was for SEATO duties and in this capacity he ...[acted] as Air Controller of P5M Marlin aircraft for Exercise Sea Imp.
A subsequent Writeway Research Report of 20 April 2012 notes that 'Captain Marian Bruce USN (Ret'd) who was in charge of the Combat Information Centre (CIC) on board [USS Salisbury Sound] at the time of the Veteran's attachment to her ... could not recall having any Australian onboard'. As the report commented: 'It could be expected that if his transfer from Sangley Point to USS Salisbury Sound was to take part in Operation Market Time, or if he was seconded by the USN to do so while in the ship, this would appear in the official documentation relating to his attachment'. The Writeway research officer, found no such evidence.
ISSUES
Initially, there was confusion as to the ambit of the application before the Tribunal. In the result, Mr Trinder confirmed that he was not seeking to reopen the finding of the Tribunal that his service at Sangley Point was not as ‘aircrew’ in the sense in which that term is used in the Instrument of Appointment. Nor was he seeking to claim that his service while on USS Salisbury Sound was such that he ‘incurred danger from hostile forces of the enemy’ (section 7A(1)(a)(i)), that provision applying only to service during World War I and World War 2 (definition of ‘period of hostilities’ in section 5B(1)).
Accordingly, the issues in contention were whether Mr Trinder was allotted for duty when he served in an operational area (section 7A(1)(a)(iii)) namely, his service:
i.in 1966 in Operation Sea Imp;
ii.on USS Salisbury Sound at Cam Ranh Bay in 1966 in Operation Market Time.
As these were not matters which were decided by the Tribunal at its previous hearing, they can be considered by this Tribunal.
LEGISLATION
The Veterans’ Entitlements Act 1986 (Cth) (Act) section 7A defines ‘qualifying service’ as:
7A(1) For the purposes of Part III … and section 85 … a person has rendered qualifying service:
(a) if the person has, as a member of the Defence Force:
(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.
5B War and operational area related definitions
5B (1) In this Act, unless the contrary intention appears:
"allotted for duty " in an operational area has the meaning given by subsection (2).
"operational area" means an area described in column 1 of Schedule 2 during the period specified in column 2 of Schedule 2 opposite to the description of the area in column 1.
Allotted for duty
(2) A reference in this Act to a person, or a unit of the Defence Force, that was allotted for duty in an operational area is a reference:
(a) in the case of duty that was carried out in an operational area described in item 1, 2, 3, 4, 5, 6, 7 or 8 of Schedule 2 (in column 1)--to a person, or unit of the Defence Force, that is allotted for duty in the area (whether retrospectively or otherwise) by written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act; or
…
(c) to a person, or unit of the Defence Force, that is, by written instrument signed by the Defence Minister, taken to have been allotted for duty in an operational area described in item 4 or 8 in Schedule 2 (in column 1).
SCHEDULE 2 Operational areas (The ‘period of hostilities’ in section 5B is also relied on for the purposes of section 7A).
| Column 1 Description of operational areas | Column 2 Period |
| 4. Vietnam (Southern Zone). | The period from and including 31 July 1962 to and including 11 January 1973 |
| 8. All that area of land and waters (other than land or waters forming part of the territory of Cambodia or China) bounded by a line commencing at the intersection of the boundary between Cambodia and Vietnam (Southern Zone) with the shore of Vietnam (Southern Zone) at high-water mark; thence proceeding in a straight line to a point 185.2 kilometres west (true) of that intersection; thence proceeding along an imaginary line parallel to, and at a distance of 185.2 kilometres from, the shore of Vietnam at high-water mark to its intersection with the parallel 21 degrees 30 minutes north latitude; thence proceeding along that parallel westerly to its intersection with the shore of Vietnam at high-water mark; thence following the shore of Vietnam at high-water mark to the point of commencement. | The period from and including 31 July 1962 to and including 11 January 1973 |
85 Veterans eligible to be provided with treatment
Section 85 (4B) A veteran is eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act, if:
(a) the veteran is 70 or over; and
(b) the veteran has rendered qualifying service within the meaning of subparagraph 7A(1)(a)(ii), (iii), (iv), (v) or (vi) or paragraph 7A(1)(b), (c) or (f); and
(c) either:
(i) the Department has notified the veteran in writing that he or she is or will be eligible for such treatment; or
(ii) the veteran has, by written document lodged at an office of the Department in Australia in accordance with section 5T, notified the Department that he or she seeks eligibility for such treatment.
CONSIDERATION
Mr Trinder is seeking a gold card. It is common ground that he is over 70 years of age, and that he is seeking eligibility for treatment. The principal issue is whether Mr Trinder has qualifying service due to his period on board USS Salisbury Sound between 30 May 1966 and 3 June 1966.
The Tribunal is satisfied on the evidence and makes the following findings.
The Statement of Service for Mr Trinder indicates that in the period 15 March 1963 to 20 November 1966 Mr Trinder, was on the posted strength of Headquarters Operational Command (HQOC), Penrith, NSW. He was not posted to No 11 Squadron, Richmond, NSW until 21 November 1966. While on the posted strength of HQOC he was temporarily attached to the Australian Joint Anti-Submarine Warfare School, Nowra, NSW, as an Air Operations Controller. The record does not indicate a year for the commencement of the attachment, but since his previous attachment ended on 3 September 1965, and Mr Trinder’s evidence is that his secondment to Nowra preceded his period in the Philippines and on USS Salisbury Sound in mid-1966, the Tribunal has inferred that his attachment at Nowra commenced on 22 November 1965 and concluded on 9 December 1966.
There is no reference to Mr Trinder being posted to or attached to any other unit during 1966. Nor is there a reference to Sangley Point in the Statement of Service. Accordingly the Tribunal finds that Mr Trinder was temporarily deployed to Sangley Point, Philippines in mid-May 1966 to act as a Maritime Air Controller for Exercise Sea Imp as part of his temporary attachment to the Australian Joint Anti-Submarine-Warfare School, Nowra while on the posted strength of HCOQ.
That finding is consistent with his duties which were, throughout this period, as a Maritime Air Controller, and with Mr Trinder’s evidence to the Tribunal. That evidence indicated that he was paid higher duties allowance from 1 May to 31 May 1966 by HCOQ, and again from 1 June 1966 to 30 June 1966, which reflected that fact that he was given extra responsibilities while he was overseas, in the Philippines and at Cam Ranh Bay at that time. As he said, he was the senior of the air controllers sent overseas, was in charge, and was paid accordingly.
There was considerable discussion as to whether Mr Trinder was formally attached to No 11 Squadron while he was at Nowra, at Sangley Point, and at Cam Ranh Bay. The Commission has maintained its position in support of that formal attachment. Mr Trinder who had earlier also accepted that he was formally attached to that squadron during these periods, resiled from that submission in his statement to the Tribunal following, he said, further research he had undertaken. The signed copy of the Brief for CAF [Chief of Air Force] dated June 2009 provided to the Tribunal makes no reference to his being attached to No 11 Squadron. Nor is there any record in support in the Statement of Service.[2] Since the sole ground on which Mr Trinder is seeking review before the Tribunal is that he was posted to HQOC and hence falls within that group listed in the Instrument of Appointment, nothing turns on this issue and the Tribunal has made no finding on it.
[2] Folio 20-22, T-documents.
The USS Salisbury Sound was anchored at Cam Ranh Bay between 15 May and 3 June 1966 and Rear Admiral Isaman was on board as Deputy Director of Exercise Sea Imp between 31 May and 5 June 1966. The USS Salisbury Sound was also involved in Operation Market Time at that time. Rear Admiral Isaman was also Commander, Task Force 72 for Operation Market Time. As it transpired, the vessel did not participate in the operational phase of Exercise Sea Imp, priority being given instead to its Operation Market Time activities.
Mr Trinder and the two RAAF colleagues were deployed from Sangley Point to the USS Salisbury Sound as Maritime Air Controllers, between 30 May and 8 June 1966. The intention was that while the ship was anchored at Cam Ranh Bay (until 3 June 1966) they were to participate in Exercise Sea Imp.
However, as the USS Salisbury Sound was not involved in Exercise Sea Imp duties, Mr Trinder said while he was on board he undertook watch duty. There is no corroborating evidence of his activities while on board during this period. Captain Marian Bruce had no recollection of Australians being on board and no records have been produced to show what the three RAAF secondees were doing during their time on the USS Salisbury Sound. Mr Trinder has no memory of whether the duties he performed while on watch related to activities connected with Operation Market Time. Nor, despite numerous searches, has any corroborating evidence of the activities of the RAAF personnel at that time been found. Nevertheless, since the Tribunal is satisfied that Mr Trinder was on board the ship between 30 May and 3 June, and that the sole or the predominant duties of the ship at that time related to Operation Market Time, the Tribunal has inferred that Mr Trinder’s watch duties, which it accepts he performed, did involve duties in connection with that Operation.
Whether Mr Trinder was allotted for duty when he served in an operational area, namely, his service in 1966 in Operation Sea Imp
No new evidence was provided in relation to Mr Trinder’s service in Operation Sea Imp. It has been accepted that Exercise Sea Imp was a multinational anti-submarine exercise which took place in the South China Sea between 26 May and 6 June 1966. It was not involved in the Vietnam conflict. In any event, the Tribunal has found that USS Salisbury Sound did not take part in the implementation phase of Exercise Sea Imp while Mr Trinder was on board. Accordingly the Tribunal finds that Mr Trinder, while on board USS Salisbury Sound was not involved in Exercise Sea Imp. In any event, with the single exception of ‘Aircrew members of Australian Air Force Detachment Sangley Point’ which is referred to the Instrument of Allotment, those involved in Exercise Sea Imp were not operating in support of Australian forces then engaged in the Vietnam conflict and hence did not fall within the Instrument of Allotment. Accordingly, Mr Trinder was not allotted for duty in an operational area despite his initially being allocated to Sangley Point, the Philippines, as an air controller to take part in Operation or Exercise Sea Imp.
Whether Mr Trinder’s service on USS Salisbury Sound at Cam Ranh Bay in 1966 in Operation Market Time amounted to service in support of the allied troops involved in the Vietnam conflict
There was no issue that Cam Ranh Bay was within the area, namely, the Southern Zone of Vietnam, and during the period, (1962 to 1973) covered by Schedule 2 of section 5B of the Act. That means Mr Trinder’s service met the temporal and geographical criteria for qualifying service under section 7A. The real issue is whether he was allotted for duty in the area.
Mr Trinder’s claim in relation to this service is based on two related arguments. The first is that as he was on temporary attachment to USS Salisbury Sound which was involved in Operation Market Time, that this operation was in support of forces, including Australian forces, involved in the Vietnam conflict, and that he undertook watch duties while on board, his service was also in support of Australian forces during that conflict. The second limb of his argument is that as he was posted to HQOC during his detachment and ‘Headquarters Operational Command Unit Glenbrook’ had been retrospectively allotted in the Instrument of Allotment, his service aboard the USS Salisbury Sound while he was on the posted strength of HQOC fell within that allotment.
The representative for the Commission conceded that it was open for the Tribunal to conclude that the USS Salisbury Sound was solely or predominantly involved in Operation Market Time, an operation which was in support of Australian and US forces in the Vietnam conflict. In addition, the Commission conceded that Mr Trinder’s watch keeping duties were more likely than not to have been in support of Operation Market Time, not Exercise Sea Imp, since the USS Salisbury Sound did not in fact participate in the seagoing element of the exercise. Accordingly Mr Trinder’s duties on board the USS Salisbury Sound were contributing to Operation Market Time. This concession was properly made.
However, the Commission did not concede the second element of Mr Trinder’s argument, namely, that his posting to HQOC for the period he was on board USS Salisbury Sound meant he had been covered by the allotment of ‘Headquarters Operational Command Unit Glenbrook’.
The Commission has been unable to identify the history behind the particular allotment of the HQOC unit in order to throw light on which personnel were intended to be covered, and the nature of their service. It is clear from the Instrument of Allotment that actual service on the ground in Vietnam or in vessels which travelled to the region was a pre-requisite to being so allotted in that Instrument. However, there is no information about what was the nature of the service of those covered by 'Headquarters Operational Command Unit’ which entitled them to allotment. The Tribunal infers that the activities must have at least been some form of active support of the troops and the prosecution of the Vietnam War.
There are other problems with Mr Trinder’s arguments. No evidence was provided to the Tribunal to indicate that the Instrument of Allotment in its reference to ‘Headquarters Operational Command Unit Glenbrook’ was intended to cover any members of the Australian Forces who were seconded to USS Salisbury Sound. Indeed, given that apparently only three personnel at most were so seconded, that their secondment was for a relatively short period of time, and possibly only Mr Trinder, of the three, was posted to HQOC at the time, it could have been expected that he would been listed individually in the Instrument, rather than as a member of a Unit, had it been intended that his service be recognised with retrospective allotment.
In addition, the Tribunal notes that it is not everyone on the posted strength of Headquarters Operational Command who is covered by the allotment, but only those in the 'Headquarters Operational Command Unit'. It is not clear on the material provided whether this was a special unit, nor whether Mr Trinder was considered to be a member of the Unit. In the absence of this evidence, the Tribunal is unable to be satisfied that Mr Trinder’s posting to HQOC meant he was included in the unit referred to in the allotment.
A further problem for Mr Trinder is that his formal secondment to USS Salisbury Sound was for involvement in Exercise Sea Imp, not Operation Market Time. The Tribunal has been unable to find any cases in which, contrary to the official reason for their presence in an area, unofficial involvement by service personnel in duties in support of a conflict in which Australia is engaged is recognised for the purposes of qualifying service.[3]
[3] Eg Revill and Repatriation Commission (unreported, M J Sassella, SeniorMember, 9 May 2011), in which the applicant’s claim for disability pension failed because no evidence of allotment was provided.
For these reasons, the Tribunal finds that while Mr Trinder was nominally on the posted strength of HQOC, Glenbrook, NSW, his service records do not show him as being posted to 'Headquarters Operational Command Unit', a specifically nominated Unit. It is also unlikely that someone who was out-posted, like Mr Trinder, was intended to be covered by the Instrument of Appointment. It is also much less likely that someone who simply happened to take part in an activity which might amount to qualifying service, would be allotted when their official presence in the area was for another purpose which would not so qualify.
Accordingly the Tribunal finds that the duties in fact performed by Mr Trinder in connection with Operation Market Time, were not such as to bring him within the Instrument of Allotment and hence give him qualifying service. The decision under review is affirmed.
| I certify that the preceding 45 (forty five) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member. |
.............................[sgd]...........................................
Associate
Dated 18 September 2012
| Date(s) of hearing | 21 August 2012 |
| Applicant | In person |
| Advocate for the Respondent | Nigel Bunn |
| Solicitors for the Respondent | Department of Veterans' Affairs |
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