JOSEPH BRAIN and REPATRIATION COMMISSION - [2009] AATA 643

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 643
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3687

VETERANS' APPEALS DIVISION )

Re JOSEPH BRAIN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date28 August 2009
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

................Signed...............
Deputy President

CATCHWORDS
VETERANS’ AFFAIRS – whether the applicant had been a “member of the Forces” by virtue of rendering three years’ effective full time service – evidence from veteran and contemporary co-workers, including his wife, that he rendered full time service in excess of three years – no document supports this claim – documents inconsistent with claimed full-time service but consistent with commencement of full time service at a later date – veteran not found to be a reliable witness – decision under review affirmed.
Veterans’ Entitlements Act 1986 (Cth) ss 69(1), 69A, 70
Defence Act 1903 (Cth) ss 30, 50
REASONS FOR DECISION

28 August 2009 Deputy President P E Hack SC

Introduction

This is an application by Mr Joseph Brain to review a decision of the Repatriation Commission made on 19 May 2004 and affirmed by the Veterans’ Review Board on 23 April 2007. By its decision the Commission, acting pursuant to s 31(4) of the Veterans’ Entitlements Act 1986 (Cth), rescinded various decisions, earlier made, that had accepted that Mr Brain was eligible for pensions, benefits and other allowances under that Act. The earlier decisions had accepted, as Mr Brain had represented, that he had rendered “operational service” in Vietnam in May and June 1971 and “effective full-time service” for a period in excess of three years between 5 April 1982 and 2 September 1985.
The decision under review was based upon the factual conclusions that Mr Brain had not rendered any operational service and that his effective full-time service had been confined to the periods 8 October 1984 to 16 January 1985 and 18 January 1985 to 2 September 1985.
In these proceedings Mr Brain no longer relies upon a claim to have rendered operational service (although he continues to maintain that he served in Vietnam). The contest between the parties relates to the length of Mr Brain’s full-time service with the Defence Forces. Mr Brain contends that he rendered full-time service between 5 April 1982 and 2 September 1985. The Commission contends that his full-time service was confined to the period between 8 October 1984 and 2 September 1985. In the course of the hearing the Commission, by its solicitor, Mr Babington, accepted that Mr Brain was serving in a full-time capacity on 17 January 1982, the day that had earlier been in issue.
The legislation
By virtue of s 70 of the Veterans’ Entitlements Act the Commonwealth is liable to pay a pension by way of compensation to, relevantly, a “member of the Forces” who is incapacitated from a defence-caused injury or defence-caused disease. The expression “member of the Forces” means a person to whom Part IV of the Veterans’ Entitlements Act applies by virtue of either s 69 or s 69A of that Act[1]. It is s 69 (1)(c) of the Act that Mr Brain relies upon to demonstrate that he was a member of the Forces. It provides:
[1] See s 68(1), Veterans’ Entitlements Act.
“(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)…
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
…”
The expression “Defence Force” has the same meaning as in the Defence Act 1903 (Cth)[2]. That Act, by s 30, says that the Defence Force has three arms, the Australian Navy, the Australian Army and the Australian Air Force. The Australian Army consists of two parts – the Regular Army and the Army Reserve[3]. All of Mr Brain’s service has been in what is now called the Army Reserve, but which was, during his period of service, called the Citizen Military Forces (CMF) and later the Australian Army Reserve[4]. A member of the CMF was not generally obliged to serve continuously but was bound “to render military service for such periods as are fixed by or in accordance with the regulations.”[5] However s 50 of the Defence Act made provision for a member of the CMF to voluntarily undertake full-time service. At the time material to Mr Brain’s service it read:
“(3) A member of the Citizen Military Forces may, at any time, voluntarily undertake to render continuous full-time military service for a period specified by him and, if that undertaking is accepted, he is bound to render that form of service for that specified period or for such period or periods within that specified period as the prescribed authority directs.”
[2] See s 5C, Veterans’ Entitlements Act.
[3] See s 31, Defence Act.
[4] The Citizen Military Forces became the Australian Army Reserve with effect from 30 September 1983 by virtue of amendments made by the Statute Law Revision Act 1981(Cth) (No 61, 1981). It became the Army Reserve by virtue of amendments made by the Defence Legislation Amendment (Enhancement of the Reserves and Modernisation) Act 2001 (Cth), (No 10, 2001).
[5] Defence Act 1903 (as at 30 April 1981).
The result of this is that if, as Mr Brian contends, he rendered continuous full-time military service between 5 April 1982 and 2 September 1985 he will have completed 3 years’ effective full-time service and thus satisfy the definition of “member of the Forces”. If, as the Commission contends, his continuous full-time military service was between 8 October 1984 and 2 September 1985, he will not.
I should add that Mr Brain did not contend that the Commission’s decision was not authorised by s 31(4) of the Veterans’ Affairs Act if the facts were as the Commission contended them to be.
The factual background
I start by recording some matters that are not in issue. Mr Brain was born in April 1939. He enlisted in the CMF on October 1957 and was commissioned in June 1963. From July 1958 Mr Brain was attached to 1 Infantry Battalion, Commando Unit. That unit came later to be described as 1 New South Wales Regiment, Commando Unit and later still 1 Commando Company (1 CDO COY). Upon his commissioning as a probationary lieutenant Mr Brain became the Unit’s transport officer.
In the subsequent years Mr Brain attended a number of courses, not all of which, he says, are noted in his record of service. In addition Mr Brain says that he carried out full-time duty at the School of Infantry at Ingleburn between January 1964 and December 1964. Again, he says, that service is not recorded in his record of service. Mr Brain relies upon these claimed deficiencies in the Army’s records to demonstrate the likelihood that his records from the later critical period have been misplaced.
It is unnecessary to set out Mr Brain’s civilian or military employment in the years from the receipt of his commission until the end of 1981. At that time he ceased his civilian employment as a security consultant. In the early part of the following year, according to Mr Brain, he was asked by MAJ Tom Wilson, then the Adjutant[6] of 1 CDO COY, to undertake full-time service for a period of 12 months as the Operations Officer of the Company. Mr Brain says that he accepted that invitation, that the necessary paperwork was completed, that his secondment to full-time service was approved and that he started full-time service on 2 April 1982. He says that he continued in that position until 6 May 1984.
[6] The transcript wrongly shows Mr Brian referring to MAJ Wilson as the company “agent”.
Mr Brain says that in about May 1984 the then Commanding Officer of 1 CDO COY, MAJ Hamilton-Smith, asked him whether he was interested in a full-time posting at Headquarters, 2nd Military District (HQ 2 MD) attached to Personnel branch. He agreed, a posting order was issued and he commenced full-time duty on 7 May 1984. He says that he worked at HQ 2 MD from that date until 8 October 1984 as a Staff Officer Grade 2, Personnel. Thereafter, Mr Brain says, he was re-posted to the Headquarters Operations Branch as Senior Operations Officer.
It is common ground that Mr Brain’s full-time service concluded on 2 September 1985 and that from 9 September 1985 he was employed full-time in another separate agency of the Commonwealth. Mr Brain reached the mandatory retiring age for a Major in April 1986.
The case for the commission
The Commission accepts, and the documents evidence, that Mr Brain undertook full-time service between 8 October 1984 and 2 September 1985. The Commission denies that Mr Brain undertook full-time service in the periods between 5 April 1982 and 6 May 1984 with 1 CDO COY and between 7 May 1984 and 7 October 1984 with HQ 2 MD.
The Commission points to five matters as warranting the conclusion that Mr Brain did not undertake full-time service in the two contentious periods. First, it points to a complete absence of any document that supports Mr Brain’s claim. Next, it points to the records that do exist that evidence the accepted period of full-time service. Then, it says, there is significance in the form of the documents evidencing the accepted full-time service. They are, it is said, consistent with a start of full-time service and not consistent with a continuation of full-time service. Next, the Commission submits that Mr Brain’s pay records demonstrate that during the contentious periods he served on a great number of “voluntary” days. The Commission submits that this is inconsistent with him undertaking full-time service and, moreover, helps to explain the evidence of those witnesses called by Mr Brain who recalled him being on full-time service. In that same category are other contemporaneous documents that are inconsistent with Mr Brain serving full-time. Finally, the Commission says, I ought not accept Mr Brain as a truthful or reliable witness.
The case for mr brain
Mr Brain accepts that there are no documents that support his contentions regarding his service and that much of the documentation is inconsistent with his case. Nonetheless he contends that the fact of his full-time service for the periods in issue is established by his evidence and the evidence of witnesses called in his case. It is said on his behalf that the fact that documents were produced late entitled me to infer that other documents may exist that support Mr Brain’s case.
The key elements of Mr Brain’s evidence have already been noticed. In addition he relies upon the evidence of Mr George Nolan, Mr Thomas Wilson, Mr Gregory Chapman-Oliver, Mr John Dodd and his wife Mrs Beverley Brain all of whom, to varying degrees, support his claim of full-time service between 1982 and 1985. In the course of closing submissions Mr Mylne, the solicitor for Mr Brain, asked rhetorically how Mr Brain had an office, how he lived from day to day and how he met his expenses.
Mr Nolan was the Staff Officer Grade One (Branch Head) of Personnel Branch at HQ 2 MD in 1983 and 1984. He said that Mr Brain commenced duties with that Branch in early May 1984 and remained on full-time duty in that branch until October 1984 when he was re-posted to the Operations Branch of the same Headquarters. He cannot now recall whether he saw paperwork associated with Mr Brain’s move to full-time service however he could not comprehend how Mr Brain could have worked on what appeared to him to be a full-time basis without the necessary approvals.
Mr Wilson was the Adjutant, 1 CDO COY between December 1980 and December 1982. His evidence was that in about March or April 1982 Mr Brain accepted an offer to take up a posting as full-time Operations Officer at 1 CDO COY. According to Mr Wilson, Mr Brain continued in that role, at least to December 1982, when Mr Wilson was posted away. He became aware from subsequent contact with Mr Brain and others that Mr Brain continued on full-time duties at 1 CDO COY until early 1984 and then at HQ 2 MD.
Mr Chapman-Oliver was a CMF warrant officer who, coincidentally, worked for the Department of Defence. In that latter capacity he maintained the records and details of reserve officers on full-time service in 2^nd Division. He says that as a consequence of performing that task he is able to say that Mr Brain “definitely” served full-time between February/March 1982 and July/August 1984. Mr Chapman-Oliver says that during this period Mr Brain worked “six offices away” from the office where he worked although it subsequently emerged in the course of his evidence that it was only from May 1984 that he worked in close proximity to Mr Brain.
Among the material was a copy of a minute paper[7] prepared and signed by Mr Chapman-Oliver. The minute paper is not dated however it appears to date from early 1985 and concerns the duty to which Mr Brain ought be allocated within HQ 1MD. It reads, in part,
“2.[MAJ Brain] has been on FTD since 8 Oct 84.”
[7] Exhibit 1, page 1417.
Mr Chapman-Oliver’s attention was not drawn to this minute paper in the course of the hearing. With the agreement of the parties a copy of it was provided to him after the hearing, under cover of a letter from the District Registrar, and he was invited to comment on it. His reply, which was provided to the parties, was that the minute was an answer to a question directed to ascertain when Mr Brain had commenced his then current term of full-time duty. The minute paper, he said, did not cause him to alter his earlier evidence that Mr Brain had served on full-time duty in 1982, 1983 and the earlier part of 1984.
Mr Dodd first met Mr Brain in January 1983 when he was posted to 1 CDO COY as the Company Sergeant-Major. The statement provided by Mr Dodd suggests that Mr Brain was on full-time duty at 1 CDO COY throughout 1983 and 1984 however Mr Dodd’s evidence was of having spent only 1983 there. He reached the conclusion that Mr Brain was working full-time because he seemed to be in the unit a lot.
In early March 1982 Mrs Brain, who was then employed in a clerical capacity with the Department of Defence (Army) commenced employment at 1 CDO COY. The following month she first met Mr Brain who she recalls was introduced to her as a Reserve officer on full-time duty. So far as she was aware that remained his position until about April 1984 when she returned to her home town. At around the same time Mr Brain was leaving the unit and going to HQ 2 MD at Victoria Barracks.
The documents
It is accepted by Mr Mylne, the solicitor for Mr Brain, that there are no records that have been able to be located that lend support to Mr Brain’s claims of full-time service in the two contentious periods. On my own perusal of the documents that concession is rightly made. But there are numerous documents that refer to Mr Brain’s full-time service between October 1984 and September 1985. It is helpful, given the Commission’s submissions, to set them out in chronological order.
The first relevant document is a telex message[8] dated 4 October 1984. It concerns Mr Brain and reads:
“1.CONCUR WITH REQUEST VIDE REF A TO DET ABOVE OFFR TO HQ 2 MD FOR TEMP DUTY/ADMIN FOR THE PERIOD 9 JUL 84 – 3 OCT 84.
2.PLS FWD COPY OF AO [Army Office] AUTH TO EMPLOY OFFR ON FTD WEF 3 OCT 84.”
That document appears to me to be consistent with the notion that Mr Brain had been serving in HQ 2 MD, at least from 9 July 1984, but, having regard to the reference to “authority to employ on full-time duty with effect from 3 October 1984”, inconsistent with the notion that Mr Brain had been full-time duty before that date.
[8] Exhibit 1, page 786.
The first document to relate to full-time duty is a handwritten memo of 11 September 1984[9] which recommends that Mr Brain be placed on continuous full-time military duty to fill a S02 vacancy caused by the posting of another officer who was performing the duties of S02 Pers (P1-3) HQ 2 MD. On the same date Mr Brain signed the undertaking[10], required by s 50(3) of the Defence Act, to render continuous full-time military service for a period of four months commencing on 17 September 1984. No earlier undertaking can be located.
[9] Exhibit 1, page 795.
[10] Exhibit 1, page 785.
The following day the Commander of 2 MD. BRIG Francis recommended acceptance of the undertaking and forwarded it to the Army Office seeking approval for Mr Brain’s full-time service[11].
[11] Exhibit 1, pages 793 – 794.
The undertaking signed by Mr Brain shows that he was at that time, a member of 2 Training Group. That is consistent with his record of service[12] which shows that he was posted as an Instructor (Major) with that Group. He was thereafter detached back to 1 CDO COY for temporary duty from 2 April 1984 to 14 April 1984. In the material is a telex[13] dated 13 September 1984 which appears to be the response of 2 Training Group to the proposed employment of Mr Brain on full-time duty. That Unit had “no objection to the employment of MAJ Brain on FTD” but a replacement for him was sought.
[12] Exhibit 1, page 529.
[13] Exhibit 1, page 792.
On 18 September 1984 Mr Brain completed a medical board and was confirmed as “FE” (fit everywhere)[14]. On 27 September 1984 a psychological report recommended that he was suitable for full-time duties[15]. These examinations were required before Mr Brain could take up full-time duty. Mr Brain could not say why these examinations had not been undertaken earlier. A message confirming completion of testing was sent on 8 October 1984[16].
[14]       Exhibit 1, page 782.
[15]       Exhibit 1, page 788.
[16]       Exhibit 1, page 787.
On 5 October 1984 Mr Brain’s undertaking was accepted[17]. The note of acceptance refers to his employment as “S02 (P1-3)…in HQ 2 MD” commencing on 8 October 1984. On that day a telex was sent advising of approval having been given for Mr Brain to render continuous full-time service from 8 October 1984 to 16 January 1985[18].
[17] Exhibit 1, page 785.
[18] Exhibit 1, page 789.
There are other documents within the material that refer to this period of full-time duty. His service record[19] shows the posting from 8 October 1984 but no earlier period of full-time duty in the period in issue.
[19] Exhibit 1, page 529.
Mr Brain’s full-time service was continued at the end of the initial period. Included in the material is a further undertaking signed by Mr Brain on 24 December 1984 to render continuous full-time military service for 10 weeks commencing on 17 January 1985[20]. There are various documents from that time that refer to an “extension of full-time duty”[21]. Eventually full-time service was extended to early September 1985.
[20] Exhibit 1, page 761.
[21] See e.g. pages 774, 776 and 778 of Exhibit 1.
There is, thus, a marked contrast between the complete absence of documents referring to full-time service in the period from May 1982 to October 1984 and the plethora of documents that refer to full-time service thereafter. Moreover, as the Commission submits, the documents that relate to the periods subsequent to the initial period of full-time service make reference to extension of full-time duty. That, again, is to be contrasted with the documents referring to the full-time duty commencing on 8 October 1984.
The other source of documents relied upon by the Commission are the pay records. They demonstrate that, at a time when Mr Brain says that he was on full-time duty, there was considerable discussion in memos and the like regarding the number of days he had served out of the total of 100 per year allowed for Army Reserve members. There is correspondence between the Defence Force Pay Accounting Centre (DEFPAC) and 1 CDO Coy commencing in February 1984 regarding an alleged overpayment to Mr Brain. It is unnecessary for present purposes to set out the detail of that correspondence; some references will suffice.

The correspondence appears to commence with a memorandum from 1 CDO Coy to DEFPAC of 1 February 1984[22]. It refers to Mr Brain having been paid “for continuous training on the dates 15 November 1983 to 30 November 1983”. It refers as well to Mr Brain having approximately 7 training days left out of his 100 days. A memorandum[23] from the Pay Sergeant of 1 CDO Coy to DEFPAC of 17 February 1984 refers to Mr Brain having “been paid 100 days, last day being 5 February 1984”.
[22] Exhibit 1, page 855.
[23] Exhibit 1, page 861.
There is a subsequent letter from DEFPAC after an investigation and reconciliation with unit roll book entries[24]. The letter refers to Mr Brian being recorded for a voluntary attendance on three days that do not exist – 30 and 31 February and 31 April 1984. On my reading of the letter it does so by way of pointing out the inaccuracies of the unit roll book. The same letter refers to Mr Brain undertaking continuous training in the period from 1 to 16 August 1983.
[24] Exhibit 1, page 857. Curiously, the second page of the letter is reproduced at page 854.
There is a response, dated only “Oct 84” from 1 CDO COY[25]. That response suggests that part, at least, of the detail was provided by Mr Brain. Importantly the letter referred to the “period 12 – 16 Dec 83 completed member’s 100 days”. That is of particular relevance because if, as Mr Brain contends, he was then serving on full-time duty there would be no question of “100 days”, that being the requirement for days of Reserve service. This correspondence is inexplicable if Mr Brain had been undertaking full-time service in 1983 and 1984; it is explicable only on the basis that Mr Brain was not then rendering full-time service but was serving Reserve duty.
[25] Exhibit 1, page 852.
Next there is a document described as a summary of Mr Brain’s attendances between 18 September 1979 and 14 May 1984[26]. That shows that in the period 1 July 1982 to 30 June 1983 Mr Brain was paid 191 days attendances and that in the following year to 14 May 1984 he was paid 158 days attendances. Mr Brain accepted that he was not entitled to be paid an attendance allowance when on full-time duty and thus these records are inconsistent with the notion of full-time duty at this time. They do, however, suggest that Mr Brain was serving considerably more than the required 100 days.
[26] Exhibit 1, page 750.
Finally, Exhibit 7 comprises the pay history for Mr Brain during the relevant period. These documents show Mr Brain being paid quarterly in the period 1 October 1981 to 1 October 1984. Those documents were tendered under cover of a letter from an employee of DEFPAC which explained that the pay records showed that members of the reserves were paid quarterly in the period from 1982 to 1985.
Beyond these documents there are many documents which, although not expressly pointed to by the Commission, are inconsistent with the case for Mr Brain.
There are, for example, many (and many copies of) documents from 1982 and 1983, at a time when Mr Brain says that he was performing full-time duty, where the document shows Mr Brain as “A Res” (Army Reserve) rather than “PMF” (Permanent Military Forces) or “FTS” (full-time service). Thus there is a document[27] that records the attendance of Mr Brain (and others of his unit) at 1 CDO COY annual camp between 17 April 1982 and 2 May 1982. There is a similar document[28] for the annual camp the following year between 6 and 24 April 1983. In June 1983 there was apparently an effort made to bring Mr Brain’s record of courses undertaken up to date. There are documents[29], signed by the Adjutant of 1 CDO COY that relate only to Mr Brain in which the “A Res” box rather than the “FTS” box has been ticked. In a similar vein, with the same “A Res” mark, are documents relating to Mr Brain from February 1985. In contrast are documents[30] of a similar style from August 1985 (when it is accepted that Mr Brain was on full-time duty), where both the “A Res” and “FTS” boxes are ticked.
[27]       Exhibit 1, page 112.
[28]       Exhibit 1, page 114.
[29]       Exhibit 1, pages 115, 116, 117 and 118. See also Exhibit 1, pages 119 and 120.
[30]       Exhibit 1, pages 753 – 755.
Next there is a document[31] that lists Mr Brain’s entitlements to “Allowances-Reserves” on 40 days between 9 July 1984 and 7 October 1984. Again, this is quite inconsistent with Mr Brain having been on full-time duty during that period but is entirely consistent with him attending frequently on Reserve duty.
[31] Exhibit 1, page 747 (the date is not clear).
Consideration
The witnesses, including Mr and Mrs Brain, are giving evidence of recollections of more than a quarter of a century ago. I have no reason to doubt the honesty of the witnesses other than Mr Brain. I am sure that they all honestly believe what they say. They were all confident in their recollections. Nonetheless, and without intending any criticism of them, I am unable to accept their evidence because it is inconsistent with the documentary evidence. Where those recollections are so at odds with contemporaneous records I can only conclude that the recollections are faulty. It is possible that their recollections have been affected by the number of days that Mr Brain was attending whilst on Reserve duty. He certainly appears to have far exceeded the usual 100 days. That may provide the answers to Mr Mylne’s rhetorical questions. I need not determine what has caused the faulty recollections; it is enough to conclude that they were faulty.
It is true that there are gaps in the records. So much may be accepted, and perhaps is to be expected, with an organisation of the size of the Army that deals with thousands of soldiers at many different locations. But where not a single document evidencing full-time service by Mr Brain in the contested periods can be located and where numerous documents that evidence the accepted period of full-time service can be located I am unable to accept that that absence is explicable on the basis of missing documents. Moreover there are many documents that are quite inconsistent with full-time service. The pay records are a prime example.
Additionally I have considerable concern about Mr Brain’s reliability. It troubles me that he persists with an assertion that he served in Vietnam despite his pleas of guilty in the District Court at Southport to three counts of defrauding the Commonwealth by falsely pretending to have done so, and despite the fact that he made a public apology to the “veterans’ community and the Court “ for his behaviour. It is enough to say that I found quite unconvincing the explanation for his guilty plea when he says that in truth he was not guilty. On my observations of Mr Brain he has deluded himself about many aspects of his service career. It is enough to say that I am unable to accept his evidence on contentious matters.
Conclusion
It follows that I would affirm the decision under review.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed:         .........................Signed...........................................
  Lynne Stalley, Administrative Assistant
Dates of Hearing  2 – 3 February, 28 April & 27 July 2009
Date of Decision  28 August 2009
Solicitor for the Applicant          Mylne Lawyers
Solicitor for the Respondent     Departmental Advocate