McCormack and Repatriation Commission

[2005] AATA 60

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 60

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No V2002/196

VETERANS'      APPEALS       DIVISION		)
Re		BRENDAN DERMOTT McCORMACK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J Handley, Senior Member

Date21 January 2005

PlaceMelbourne

Decision The decision under review is set aside and in substitution IT IS DECIDED the applicant suffers alcohol dependence or abuse and anxiety which is war-caused.  The application is remitted to the respondent for assessment of pension in accordance with these reasons.

(Sgd)  John Handley

Senior Member

VETERANS’ ENTITLEMENTS – applicant conscripted into Army – previously an apprentice in Merchant Navy – prior consumption of alcohol – upon joining Army, engaged on “John Monash” – seconded as navigator on two voyages on Saigon River to Vung Tau with promotion to Sergeant – applicant felt isolated – was aware of vessels previously attacked with loss of life – aware of presence of mines and divers – alcohol consumption increased – access permitted to Sergeants’ Mess and access to alcohol – whether suffering a psychiatric disorder or experienced a severe stressor – whether clinical worsening of alcohol dependence or abuse – distinction between dependence and abuse – decision set aside

Veterans’ Entitlements Act 1986 s120(1)

Woodward v Repatriation Commission [2003] FCAFC 160

Stoddart v Repatriation Commission (2003) 197 ALR 283.

Repatriation Commission v Deledio (1998) 83 FCR 82

Benjamin v Repatriation Commission (2001) 70 ALD 622

Fogarty v Repatriation Commission [2003] FCFCA 136

Repatriation Commission v Hancock [2003] FCA 711

Repatriation Commission v Bendy (1990) 18 ALD 144

Delahunty v Repatriation Commission [2004] FCA 309

REASONS FOR DECISION

21 January 2005 Mr J Handley, Senior Member      

1.       On 21 June 2001 the respondent refused claims made by Mr McCormack for acceptance of the conditions of alcohol abuse, anxiety attacks and post traumatic stress disorder.

2.       Upon review by the Veterans’ Review Board (“VRB”) on 24 January 2002, it was decided that the decision of the respondent, in so far as it related to alcohol abuse, was affirmed.  The VRB recorded in its decision that the Veteran had consented to the withdrawal of his claims in so far as they related to anxiety attacks and post traumatic stress disorder.  The applicant applies to review that decision.

3.       Mr McCormack is presently 58 years of age having been born on 29 April 1946.  He was a member of the Australian Army between 8 July 1970 and 7 January 1972.  The VRB recorded that the applicant’s eligible war service existed between 24 June 1971 and 4 August 1971 whilst he was on board the vessel HMAS John Monash (“the John Monash”).  Within this period of time the vessel was within Vietnamese waters.  During the hearing it emerged that the applicant had been engaged on another voyage on board “John Monash” which sailed in Vietnamese waters between 7 October 1971 and 12 October 1971.  This will be referred to later in these reasons.

4.       At the hearing, Mr Larkin of…