McDonald and Repatriation Commission

[2004] AATA 1400

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1400

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/678

VETERANS'     APPEALS        DIVISION

Re:         GORDON JAMES McDONALD

Applicant

And:         REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             24 December 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

VETERANS' AFFAIRS – claim for service pension – qualifying service – service in Australia before 24 October 1945 – post-war service in Japan – decision affirmed

Veterans' Entitlements Act 1986 s 7A

REASONS FOR DECISION

24 December 2004  Regina Perton, Member

1.      This is an application by Gordon James McDonald (the applicant) for review of a decision of a delegate of the Repatriation Commission (the respondent) dated 6 April 2004.  The delegate affirmed a decision of the respondent dated 23 February 2004 to refuse a claim for a service pension.

2. It having appeared to the Tribunal that the issues in this matter could be adequately determined in the absence of the parties; and the parties having consented that the review be determined without a hearing, the Tribunal reviewed the decision by considering the documents lodged with the Tribunal and without holding a hearing, pursuant to s 34B of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

3. The Tribunal received into evidence the documents lodged under s 37 of the AAT Act.

BACKGROUND

4.      The applicant was born on 10 October 1920.  He enlisted in the Australian Army on 17 September 1940 and served until 8 March 1949.  At the time of his enlistment he was in a reserved occupation.  He commenced service on 5 August 1941, serving within Australia until 12 March 1946, when he travelled to Japan by ship.  He arrived in Japan on 9 April 1946 and served with the British Commonwealth Occupation Forces there until early 1949.  He was discharged on 8 March 1949.

5.      On 22 January 2004, the applicant lodged a claim for a service pension.  On 23 February 2004, a delegate of the respondent determined that the applicant was not eligible for a service pension because he did not render qualifying service in accordance with the Veterans’ Entitlements Act 1986 (the Act).  On 31 March 2004, the applicant sought review of decision and on 6 April 2004, a delegate of the respondent affirmed the decision.

6.      On 11 June 2004, the applicant lodged an application for review with the Tribunal.

7.      The issue before the Tribunal is whether the applicant rendered qualifying service, which would entitle him to a service pension.

EVIDENCE

8.      In a written statement to the respondent, the applicant stated that when he enlisted, he volunteered to do whatever he was directed to do, wherever and whenever he was sent.  He pointed out that the decisions about where he was to serve were outside his control.  He stated that his role was to instruct others on the operation and maintenance of armoured vehicles.  The applicant stated that he was on his way to New Guinea to join the 147^th Light Aid Detachment when the Detachment and Sydney Harbour were bombed by the Japanese and he was then given the task of assisting with the disposal of equipment that remained from the Detachment.  The applicant stated that he was sent to Japan as part of the first group of Australian Imperial Force members.  He stated that in his first few days in Japan a bullet passed through his greatcoat just below his right arm; and he therefore incurred danger in that incident and in other incidents in Japan.  He pointed out that he served with the armed forces for 1,448 days within Australia and 1.090 days outside Australia.   He expressed the hope that his commitment and contribution to Australia, and the sacrifices he made for Australia would be recognised.

9.        The applicant’s daughter, Christine McDonald, who assisted her father to lodge the application, provided the Tribunal with a copy of a letter she sent to the Prime Minister describing her father’s 2,518 days of service and pointing out that he served where he was directed.  She stated that her father served Australia as he was directed to do and had been willing to undertake overseas service.  She emphasised that her father had given seven years of service and was now being told he was not entitled to a service pension due to postings outside his control.

10.     The respondent provided a copy of the applicant’s Service and Casualty Form which showed that the applicant served in Victoria and New South Wales until April 1946 when he left for Japan, serving there until February 1949.

CONSIDERATION OF THE ISSUES

11. Section 7A(1) of the Act sets out the ways in which a former member of the Australian defence forces qualifies for a service pension. It states:

(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; …

12.     The term period of hostilities is defined in subsection 5B(1) of the Act as follows:

...

"period of hostilities" means:

(a)     World War 1 from its commencement on 4 August 1914 to 11 November 1918 (both included); or

(b)World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); or

(c)      the period of hostilities in respect of Korea from 27 June 1950 to 19 April 1956 (both included); or

(d)     the period of hostilities in respect of Malaya from 29 June 1950 to 31 August 1957 (both included); or

(e)      the period of hostilities in respect of war-like operations in operational areas from 31 July 1962 to 11 January 1973 (both included).

…

13. The applicant served in Australia during World War 2 and did not serve in Japan until after 29 October 1945. Therefore, he did not serve overseas during a period of hostilities as defined in the Act. The applicant was not stationed in Sydney when it came under attack. The Tribunal finds that he does not meet the requirements of s 7A(1)(a)(i). There is no evidence to suggest that the applicant was awarded, or is eligible to be awarded, any of the service medals set out in s 7A(1)(a)(ii). There is no evidence that he meets any of the other ways of qualifying set out in s 7A(1) of the Act.

14. The applicant having failed to qualify for the pension under s 7A(1) of the Act, the Tribunal has no option but to affirm the decision under review.

DECISION

15.     The Tribunal affirms the decision under review.

I certify that the fifteen (15) preceding paragraphs are a true copy of the reasons for the decision herein of:

Regina Perton, Member

(sgd)       Catherine Lake

Clerk

Date of Hearing:  Not applicable: decision on the papers

Date of Decision:  24 December 2004