Keleris and Repatriation Commission
[2003] AATA 441
•15 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 441
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/960
VETERANS' APPEALS DIVISION ) Re GEORGE KELERIS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date15 May 2003
PlaceBrisbane
Decision The Tribunal affirms the decisions under review.
...............(Signed)................................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ AFFAIRS – Post Traumatic Stress Disorder – alcohol abuse – whether stressors satisfy SOP
REASONS FOR DECISION
Deputy President Don Muller 1. This is an application by George Keleris for review of decisions of the Repatriation Commission to refuse claims for disability pension and medical expenses in relation to Post Traumatic Stress Disorder (PTSD), psychoactive substance abuse or dependence (alcohol abuse), leg ulcers and haemorrhoids on the basis that those illnesses are not war-caused or defence-caused within the meaning of those terms in the Veterans' Entitlements Act 1986 (the Act).
2. The Applicant abandoned his claims for leg ulcers and haemorrhoids and consequently the decisions in relation to those illnesses are affirmed.
3. The Applicant served in the Australian Army from 9 April 1968 until 18 April 1974. He rendered “eligible service” for the purposes of the Act:
(a)Operational service, in Vietnam, from 28 May 1970 to 1 June 1971, and
(b)Eligible defence service from 7 December 1972 to 18 April 1974.
4. The Applicant claims that he experienced five stressful events whilst serving in Vietnam and that those stressors have caused him to develop PTSD and alcohol abuse. The events were:
(a)Riding on a tank when it ran over a mine.
(b)Firing at an Australian soldier whom he mistakenly thought was the enemy.
(c)Sleeping in a below ground level dog kennel during a night-time storm which washed mud into the kennel.
(d)Observing dogs dragging human body parts across a road.
(e)Observing some Vietnamese who had apparently committed suicide by hanging themselves.
5. The Applicant trained as a butcher and had been a butcher for five years before joining the Army. After his recruit training, he became a butcher in the Army. The Army did not use butchers in Vietnam. The food came as ration packs, cans and frozen food. In Vietnam the Applicant worked in a rations store.
6. The Applicant initially made a claim on 30 July 1997, for “nerves” caused by “practical joke I was buried for 1½ days”, and “alcohol abuse” caused by “clothes worn too hot”.
7. The Applicant was seen by Dr. Rigano, psychiatrist in December 1997. Dr. Rigano’s report, dated 22 December 1997, contained the following (among other things):
“I note in the referral from Dr Smith that he lodged a claim based on ‘nerves and alcohol abuse’ which he attributed to service in Vietnam arising from a practical joke where he was buried for 36 hours. However, I note there is no evidence of psychiatric impairment on the discharge medical records.
He is a 49 year old male, currently resident in Tully. He is employed as a labourer for the Tully Council, a temporary position he has held for three months. He was previously employed in the Innisfail Meat Works, but was injured in September and on Workers’ Compensation until February. He had no income from February to July and eventually returned to the meat works, but was put off work along with 50% of the work force. He has been doing casual work in Tully since.
His role was in the rations store, although he was a ‘general extra’ serving in the infantry unit. He stated that he was wounded on one occasion, ‘blown up a couple of times’, once whilst serving on the lead tank which hit a mine field.
He also described an incident when he was buried overnight in a gunpit. Apparently the gunpit is a temporary structure consisting of a hole with sheets of iron placed over the top where they would keep their tracker dogs. He said he was put in there because ‘they reckon there was no other room for me’.. He was put in the pit the day after the tank explosion and was still shaken up by the incident. Whilst he was in the pit it collapsed and he remained buried until the next day because ‘there was a fight on and it was raining’.. However, he said he was not hospitalised, nor was the incident reported.
He also described another trauma when, whilst acting as section commander, he accidentally shot at a fellow soldier.
He claimed that he began drinking some time during Vietnam. This escalated after the war service and has continued consistently since. He estimates his current consumption is seven to eight stubbies of beer at night and a carton on the weekends. He said if he begins on a bottle of rum, he generally stays until it is finished. He claims he gets regularly intoxicated.
Diagnosis
I feel that he fulfils the criteria of a) Substance Abuse – Alcohol, b) Post Traumatic Stress Disorder.
The PTSD diagnostic criteria include
a) multiple traumatic events in which he experienced, witnessed or confronted with death through his war-time experiences and which involved fear, helplessness and at times horror.”
8. In April 1998, the Applicant was asked by a delegate of the Respondent to answer an “Alcohol Questionnaire”. Some of the questions and the Applicant’s answers were:
“1. When did you begin to consume alcohol on a regular basis? (You may not know exactly when you started to consume alcohol regularly, but please be as precise as possible.)
During service in SVN 1970-1970
2. Was there any particular reason for doing so?
Loss of Self Respect Esteem just a number no future use to self
3. How often did you drink at that time?
□ Every day
□ 2-3 times per week
Once per week
□ Less than once per week4. What kind of alcoholic drinks did you consume at that time? (eg beer, wine or spirits)
Beer Spirits
5. On average, how much did you consume on each occasion?
6 – 8 7 oz beer
6. Have there been any periods when your alcohol consumption changed significantly?
□No
Yes – Please give details (the period of the change, the amount of the change and the reason for change):
After service in S.V.N. no future in life after R.T.A.
No respect, Lack of future prospects, public denial of Aust commitment in war that nobody wanted.
9. The delegates of the Respondent were sceptical about a claim that an Army butcher serving in the Service Corps was “blown up a couple of times whilst serving on the lead tank which hit a mine field” and also that he was ever acting as a section commander. A Claims Assessor contacted “Write Way Research Service” to clarify the matter. On 27 May 1998, John Tilbrook, who specialises in research of Defence war records produced two reports which contained the following:
FIRST REPORT
“Confirmation of Vietnam service
2. It is confirmed from the 2 RAR unit history for it’s second tour of duty in Vietnam, that (then) PTE G. Keleris served with 2 RAR which was based with 1 ATF at Nui Dat. He served with that unit in Vietnam between 28 May 70 and 1 Jun 71 (a period of almost 12 months).
Employment in Vietnam
3. During his period of service in Vietnam with 2 RAR, (then) PTE Keleris was a member of the Royal Australian Army Service Corps (RAASC), and was employed in his Army trade as a Butcher ECN 061. Although he was posted to ADMIN Company of 2 RAR, his posting was essentially a non-combatant’s position, with his duties
mainly being confined to the Ration Store which was controlled by the unit Quartermaster.
Extent of Consultation and Research
4. In researching the Contentions put forward, the Researcher has examined both the 2 RAR and 1 ATF war diaries. In the absence of any official record of the events alluded to by (then) PTE Keleris, it was necessary to research the 2 RAR unit history titled “Second to None’ written by the battalion’s CO in Vietnam, Colonel J.M. Church, DSO..
5. One result of this research is that it has been confirmed that PTE Keleris was NOT wounded in action as he has claimed. A nominal roll of the 2 RAR (ANZAC) Battalion tour of 1970/71 lists all of the officers and soldiers posted to the unit, with the symbols against each affected name to indicate whether they were KIA, DOW, WIA or died of illness. It will be noted from Attachment No. 1 to this Research Report that PTE G. Keleris served with Admin Coy, and was not WIA as claimed. This aspect has also been confirmed by his Company commander in Vietnam (then) MAJ Chris Mayhew.
6. In the absence of any Army operational records or published material to substantiate any of the claims being made by Mr Keleris, it was necessary to locate and interview the following former 2 RAR officers from that unit’s 1970/71 tour of duty.
a. LTCOL Adrian Roberts (ie. MAJ A.R. Roberts, Ops Offr 2 RAR in Vietnam);
b.LTCOL Chris Mayhew (ie. MAJ C.R. Mayhew was OC ADMIN Coy 2 RAR in Vietnam, and PTE Keleris’ OC at the time of the alleged Contentions).
Contentions submitted by Mr Keleris regarding service with 2 RAR in Vietnam
7. The Researcher has investigated the following Contentions claimed by the Veteran with the sources identified in paragraph 6.
1. ‘His role was in the rations store, although he was a ‘general extra’ serving in the infantry unit. He stated that he was wounded on one occasion, ‘blown up a couple of times’, once whilst serving on the lead tank which hit a minefield’.
2. ‘He also described an incident when he was buried overnight in a gun pit. Apparently the gun pit is a temporary structure consisting of a hole in the ground which sheets of iron placed over the top where they would keep their Tracker Dogs. He said he was put in there because ‘they reckoned there was no room for me’. He was put in the pit the day after the tank explosion and was still shaken up by the incident. Whilst in the pit it collapsed and he remained buried until the next day because ‘there was a fight on and it was raining’. However, he said he was not hospitalised, nor was the incident reported’.
3. He also described another trauma when, while acting as section commander, he accidentally shot at another fellow soldier.’
Response to the Veteran’s Contentions
8. Despite exhaustive examination of Army operational records, research of the 2 RAR unit history and interviews with two former 2 RAR officers who held key appointment in the unit at the time that PTE Keleris was serving (ie. The SO2 Ops and the veteran’s own Company OC), there is NO evidence what-so-ever to substantiate any of the three Contentions listed in paragraph 7.
9. LTCOL A.R. Roberts, RL (then SO2 Ops with 2 RAR) has no recollection of ever having to ‘field’ logistic soldiers in support of 2 RAR field operations away from Nui Dat as is alluded to by PTE Keleris. LTCOL C.R. Mayhew (then OC ADMIN Coy) states that he would have known (and would have had to have agreed) of the use of any of his soldiers in combat roles (which they never were); and certainly would have known of any of his men who were wounded. He agrees with the official 2 RAR unit history that the only two members of AMDIN Coy who were WIA in 1970/71 were PTE E.A. Birch and PTE B.J. Graham. This pair represented the total sum of soldiers in his Company that were WIA.
10. Put simply, LTCOL Mayhew has stated quite bluntly that each of the Contentions put by Mr Keleris are nothing short of ‘pure fantasy’.. While he would have participated in rostered security and patrolling duties around the 2 RAR perimeter as has been acknowledged under ‘general stressors’ in paragraph 11, at no stage would a Butcher have been sent of (sic) combat operations with an infantry section of a rifle company, and he certainly would not have been appointed as an acting section commander in such a scenario.”
SUPPLEMENTARY REPORT:
“Response to the Veteran’s Contentions by the CO 2 RAR
8. The following responses have been obtained from COL John Church regarding the above contentions claimed by one of his former ‘logistic’ and non-combatant soldiers.
Response to Contention No. 1. He can NOT believe that PTE Keleris would have been in a position of ….’being blown up on a couple of occasions’.. He related that 2 RAR experienced one incident (only) where a Platoon of American 155 mm Medium Artillery Guns, supported by a tank troop (Centurions of C Sqn, 1 ARMD REGT), tan American ‘Duster’ and a Rifle Platoon from 2 RAR went off to do a job east of Phu My just to the north of Nui Thi Vai. COL John Church (as the CO 2 RAR at that time) does not remember any of his soldiers being wounded on this stint, although three American soldiers were WIA. This was the ONLY tank explosion incident that COL Church can remember, and he can NOT believe that the unit butcher would have been along with that rifle platoon.
Response to Contention No. 2 In the 1 ATF base at Nui Dat the infantry battalions kept their Tracker Dogs in kennels within fenced off runs. He stated that they were certainly not kept in holes in the ground, and he did not believe that they were kept in holes in the ground in the field either. COL Church does not remember any reports of anyone being buried in a weapon pit, nor does he believe that anyone would have been put in a weapon pit (or alleged ‘dog’ pit) in the circumstances that ex PTE Keleris has described. There were NO reports of any enemy activity around any of the Fire Support Bases (FSB) occupied by 2 RAR, and in any event, COL Church can NOT believe that PTE Keleris (as a unit butcher) would have been deployed to any FSB. He is of the informed opinion that PTE Keleris would have been fully occupied in his trade as butcher within the 2 RAR Admin area at Nui Dat base.
Response to Contention No. 3 COL Church states that it is doubtful that a PTE butcher is likely to have been placed in command of a rifle section. Whilst PTE George Keleris may have been placed in command of a clearing patrol employed on Nui Dat base defence tasks, again he very much doubts it. The usual practice within 2 RAR (and other combat units) was to always put worn rank NCOs in charge, as that is what they were trained to do (and butchers were not). COL Church states that in the first month of the 2 RAR tour in 1970 a soldier from Admin Coy was accidentally shot whilst participating in a 1 ATF base security patrol, but his name was PTE Birch. The only other accidental shooting within Admin Coy 2 RAR involved a SGT Birnie, which was a self inflicted wound, and PTE Keleris was not involved in that incident.
Informed opinion of former CO RAR on Veteran’s Contentions
9. In summary, COL John Church (who incidentally has researched his unit’s history in very precise detail to author and publish the unit history ‘Second to None’) believes that the Contentions put by Mr Keleris ….’all sound like a bit of a fairy story, and he seems to claim activities that are a bit adventurous for the unit Butcher, whom one could see doing his stint of sentry and night patrols in the vicinity of Nui Dat base, but little else.”
10. There is a passage in Col Church’s book, “Second to None”, which could refer to the incident in which the Applicant claims he took part. That is:
“Three days later, I directed an airstrike by two FGA aircraft onto this cave system, to practise the procedures for such strikes. Mines and booby-traps must have riddled the area as there were several secondary explosions after the bombing passes.
Following the airstrikes, we decided to deploy a platoon of US 155-millimetre guns into the area of operations to a position where they could bring down direct fire against the cave system. The platoon was to be protected by a troop of tanks, a detachment of Dusters (self-propelled twin 40 millimetre anti-aircraft guns) and an infantry platoon mounted in APCs
Deployment began early in the morning of 31 July. During the remainder of that day, the group sustained damage five times from mines sited on the track being used by the force to move into their gun position. Two of these mines damaged the same vehicle, a Duster, and three US soldiers were also injured. Two other explosions damaged tanks from our troop. The final explosion destroyed a water trailer towed behind a 155-millimetre self-propelled gun. After the fifth explosion, I called off the attack and ordered all vehicles except the disabled Duster to withdraw to open ground. We planned to evacuate the Duster in daylight the next day with the help of an armoured recovery vehicle.”
11. On 1 September 1998, the Respondent rejected the Applicant’s claim for PTSD and alcohol abuse.
12. On 17 June 2002, the Applicant signed a statement in which he again detailed his claim to have experienced the stressors of riding on a tank which hit a mine on two occasions, firing on an Australian soldier by mistake and spending a night in a dog kennel. He also added two more claimed stressors. He said, among other things:
“11. After a time we were travelling through a minefield that had been deloused by engineers the day before, but unknown to our side it had been resewn the previous night. We were moving through the tape when we hit a mine that blew the right track off our tank. We were told to stay where we were until the field engineers had cleared the area.
12. After a time, the recovery tank came in to pull us backward. After a short pull was commenced, we hit another mine that further disabled us. During this time, all personnel in the immediate area were quite shaken up. I was worried that, if it came to the crunch, I would not hold it together (having not been trained for this type of scene). I felt afraid and helpless.
13. Later in the day we were pulled back to a harbour where the artillery were to proceed with a fire mission on the target. During the setting up of this harbour I was called away from my group for an Operations Group meeting. Upon returning to my previous position there was nobody there. I looked around in the rainy to overcast conditions to see where any body was. I looked up about 100 or so metres in front of me and saw movement, dark clothes and people moving stealthily.
14. By this time the artillery had started their barrage, coupled with the shock of the previous incidents I thought that the people in front of me were V.C. so I took aim at one of the moving people and fired a shot. Luckily I missed, as it was one of my mates that was on the same tank as me. He signalled to me and I stopped shooting.
15. I was in total shock by this time. We agreed later not to say anything about the incident as we were all shaken up and embarrassed as they had been shifted while I was away and I was not informed.
…
17. Following the tank incident, I also recall being buried in a dug-out dog kennel at the Fire Support Base. The dog kennel was an underground chamber similar to a gun pit. I was put in the dog kennel as I was told there was no room left in any of the tents. It was raining and one end of the dog kennel collapsed in on me. I remained in the dog kennel until the next day when I was recovered from it. It was a frightening experience.
..
20. After returning to Nui Dat I resumed normal duties. Later on, about the middle of September, I was shotgun on a vehicle doing the dhobi run (laundry run) to Baria, during which we had to pass through Hos Long. One of my companions on the vehicle remarked ‘What are those dogs dragging around across the road?’ The objects in questions were human body parts. I understand that it was likely the dogs had dug up the body parts from a mass grave of V.C. who had been killed in an earlier contact with a detachment of 8 RAR which claimed some 18 kills. I felt remorse and disgust, as well as amazement at the sight.
21. Later in the tour after the duration of a Military Payment Certificate changeover I was once again shotgun on a truck/troop convoy through the Binh-Ba Rubber Plantation.
22. As we drove past one of the plantations we heard loud crying and shrieking. On looking further at the house, I could see bodies hanging from the veranda. I understand that these were people who were active in the black market and due to the military money change over, were no longer millionaires but paupers.
23. During all these operations since my return to Australia, I have suffered guilt and remorse that I could have failed myself and my mates by my lack of training. I reject the contention by Col Church (cited in Mr Tilbrook’s report dated 27 May 1998, para 9) that my contentions sound like ‘a bit of a fairy story’.”
13. On 25 November 2002, Colonel John M Church provided the following statement in relation to this matter.
“I have reviewed the reports on ex 1202038 PTE George Keleris who served as an RAASC Butcher attached to 2 RAR for its second tour in Vietnam during my period in command.
I agree with the evidence given by the Operations Officer, then MAJ AR Roberts and Officer Commanding Administration Company, then MAJ CJ Mayhew that the claimant was never wounded and was never in the position of being on any tank which was blown up. The only tanks to be damaged by mines during our tour was on 31 July when a party consisting of our tank troop, a platoon of US medium self-propelled and an infantry platoon triggered three mines. The veteran was not present when this action took place.
I would have been reluctant at any time to have allowed any of the attached logistic support troops to have taken part in any operations in the field, other than for short periods and then only with company headquarters.
I am unable to support this man’s claims that he faced any action in field operations.”
14. At the hearing, the Applicant gave evidence during which he affirmed the matters he had spoken about when he made his statement on 17 June 2002. He also denied that he had told Dr. Rigano that he was wounded in Vietnam.
15. Colonel Church gave evidence by telephone. He said that he had a good memory of the incident which occurred on 31 July 1970. He kept personal records and he wrote up the official records for an “after action” report. On the day in question Colonel Church was observing proceedings from a helicopter. He was in radio contact with headquarters on the ground. He was not actually overhead when the Australian tanks were stopped by mines. He made the following points:
· The object of the operation was to set up some guns to fire into a group of caves.
· The group sustained damage five times, three in relation to Australian tanks.
· He does not know if one tank suffered from one or two mines.
· There was no mine field – just a few mines on a track.
· No tanks were disabled – the only vehicle disabled was a “duster”.
· It was not a major action.
· The duster was recovered next day.
· He did not mark off a roll – he cannot say whether Pte Keleris was there or not.
· The operation was called off.
16. For the purposes of this review, Mr. Stoner, for the Respondent, conceded that the Applicant has been diagnosed as suffering from PTSD and alcohol abuse, but put in issue the question as to whether or not the illnesses were caused by his service in Vietnam.
17. The Tribunal has some difficulty with the diagnosis of PTSD because it was based to a large degree on the false premise that the Applicant had been “wounded on one occasion, blown up a couple of times, once whilst serving on the lead tank which hit a mine field”. Dr. Rigano had no material before him about dogs dragging body parts nor about Vietnamese civilians committing suicide.
18. At any event, to qualify for pension and medical expenses in relation to PTSD and alcohol abuse the Applicant has to show that his illnesses are due to certain factors related to his service, in his case specifically to his service in Vietnam. Those factors which must be related to his service in Vietnam are set out in the relevant Statement of Principles prepared by the Repatriation Medical Authority.
PTSD: Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999
“Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
“experiencing a severe stressor” means the person experienced, witnessed, or was confronted with an event or revents that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”.
Alcohol Dependence or Alcohol Abuse: Instrument No. 76 of 1998
“Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
…
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abuse violence;”
19. The Tribunal has some concerns with the credibility of the Applicant.
(a)When he first made his claim for “nerves” in July 1997 he attributed the cause to a practical joke in which he was buried for 1½ days. The 1½ days has since shrunk to a period of overnight. The aspect of being buried has become spending the night in a gun pit or dog kennel which had some mud flow into it because of overnight rain.
(b)In December 1997, Dr. Rigano reported that the Applicant said that he had been wounded and that he had been blown up a couple of times, whilst riding on the lead tank which struck a mine field. This version of events is not supported by any of the former senior officers who provided statements and evidence to the Tribunal to the effect that the Applicant was never wounded, would not have been riding on the lead tank, there was no mine field and none of the tanks were damaged.
(c)The Applicant’s version of how he came to fire at one of his own men is also suspect. The Applicant said, “By this time the artillery had started their barrage, coupled with the shock of the previous incidents I thought that the people in front of me were V.C. “ Colonel Church said that his original intention was to shell some caves in the distance to clear them of booby traps but after the incident with the mines he called off the operation. There was no artillery barrage and the group never engaged any V.C.
(d)The claimed stressors associated with viewing dogs carrying human parts and seeing Vietnamese who had committed suicide did not emerge until the Applicant made a statement in June 2002. This was five years after the Applicant made his original claim in July 1997. The Tribunal takes the view that if these stressors had been significant enough to precipitate a permanent psychiatric illness, that is, of the seventy required to satisfy the SOP for PTSD, the Applicant would have remembered the incidents well before June 2002.
(e)In 1997, the Applicant claimed that he began to abuse alcohol for these reasons:
(i)Clothes worn too hot;
(ii)Loss of self respect just a number no future use to self;
(iii)No respect, lack of future prospects, public denial of Australian commitment in war that nobody wanted.
20. Colonel Church had access to official records and to records he made personally at the time the events took place in 1970. Where there is any variation in the evidence of the Applicant and Colonel Church, the Tribunal prefers the version of Colonel Church.
21. The Tribunal does not accept that during the Applicant’s service in Vietnam he experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury or a threat to his personal integrity.
22. Consequently, the Applicant does not satisfy the SOP for PTSD or alcohol abuse. Therefore, no reasonable hypothesis has been raised connecting the Applicant’s PTSD or his alcohol abuse with the circumstances of his relevant service.
23. The decisions to reject the Applicant’s claims are affirmed.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .......................................................................................
C. O’Donovan, AssociateDate/s of Hearing 27 November 2002
Date of Decision 15 May 2003
Counsel for the Applicant Mr. D. Honchin
Solicitor for the Applicant Purcell Taylor
Respondent Mr. J. Stoner, departmental advocate
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