Nanscawen and Military Rehabilitation and Compensation Commission (Veterans' entitlements)

[2025] ARTA 849

Nanscawen and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2025] ARTA 849 (12 June 2025)

Applicant/s:  Alan Nanscawen

Respondent:  Military Rehabilitation and Compensation Commission

Tribunal Number:                2024/7739

Tribunal:Senior Member George

Place:Darwin

Date:12 June 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 12 June 2025 at 12:14pm

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Senior Member George

Catchwords

VETERANS – Army – National Service – British Malaya – whether a member of a unit of the Defence Force that was allotted for duty – no qualifying service – no entitlement to Gold Card – decision under review affirmed.

Legislation

Veterans’ Entitlement Act 1986

Secondary Materials

Instrument for Allotment of Persons under the Veterans’ Entitlements Act 1986 Malayan Emergency 29 June 1950 to 31 August 1957 Schedule 2 Item 2

Statement of Reasons

1. Mr Nanscawen was a soldier. Seven decades ago, Australia had national service and Mr Nanscawen performed his duty to this country as he was obliged. Today, aged 88 years, he seeks a Gold Card. For the reasons that follow, which do not reflect on the overall merits of his military service, Mr Nanscawen is not entitled to a Gold Card.

2. The Tribunal is certain that it does not have before it the full documents that relate to Mr Nanscawen’s military service. All available documents form Exhibit A1/R1, but there are no pay records or muster books or posting signals or travel orders or flight manifests. Materially, Mr Nanscawen’s Record of Service at T3 page 26 references “R[outine] O[rders] or other Reference”. Given the passage of time, and noting the searches made by the Respondent, such records would no longer seem to exist.

3. It is uncontroversial that Mr Nanscawen enlisted on 26 April 1955 and was posted to the 15^th National Service Training Battalion. Although it does not appear in his records, the Tribunal accepts Mr Nanscawen’s evidence that he received training at Puckapunyal and Watsonia Barracks.

4. The records show that Mr Nanscawen transferred to the 3^rd Division Signals Regiment in August 1955, where he served until his discharge in April 1960. Again, although it does not appear in the records, the Tribunal accepts from Mr Nancawen’s evidence that he received jungle training in Canungra in August 1955.

5. In a letter dated 26 February 2025, Mr Nanscawen stated that he deployed to Penang in October 1955 and then transferred to Perak in the former British Malaya. This was contemporaneous with deployment of the 2^nd Battalion, Royal Australian Regiment (‘2RAR’).

6. In an email dated 16 July 2024, Mr Nanscawen said that he deployed with a Ben Williams to Penang in October 1955 via Darwin on RAAF aircraft. Materially, Mr Nanscawen says that “We were transferred to Perak when attached to 2^nd RAR and served as signalmen until 1956 in Perak”. It is the question of whether Mr Nanscawen was formally a member of the unit that was allotted for duty that is central to the question of whether he rendered qualifying service for the purposes of section 7A(1) of the Veterans’ Entitlement Act 1986 (‘the Act’).

7. Section 7A(1) of the Act is lengthy and complex, however only subsection 7A(1)(a)(iii) is relevant to Mr Nanscawen’s circumstances.

8. For the purposes of satisfying the qualifying service requirements of section 7A(1)(a)(iii) of the Act, the Tribunal accepts that Mr Nanscawen was physically present as a member of the Australian Army in the operational area of Malaya in 1955 and 1956. The Tribunal notes that this period was seven decades ago and it is unconcerned about irregularities in Mr Nanscawen’s recollection. Indeed, the Tribunal would be more concerned if Mr Nanscawen’s recollection was perfect. A perfect recollection might indicate a reconstruction of events. However, in the absence of a posting order or a muster book, or any other persuasive documentary evidence, the Tribunal is not reasonably satisfied that Mr Nanscawen was a member of 2RAR through formal posting or attachment or any other recognised command means. On the contrary, the Tribunal is reasonably satisfied that Mr Nanscawen was at all material times a member of the 3^rd Division Signals Regiment.

9. It is uncontroversial that the 3^rd Division Signals Regiment was not an eligible unit of the Defence Force at the relevant time, within the meaning of section 5C of the Act, whereas 2RAR was an eligible unit. This is due to the operation of the Instrument for Allotment of Persons under the Veterans’ Entitlements Act 1986 Malayan Emergency 29 June 1950 to 31 August 1957 Schedule 2 Item 2. Accordingly, the Tribunal is not satisfied that Mr Nanscawen was allotted for duty within the meaning of section 5B(2) of the Act.

10. Without being allotted for duty, within the technical meaning of the Act, Mr Nanscawen did not perform qualifying service. His application for a Gold Card cannot succeed. The Tribunal must therefore affirm the decision under review.

    DECISION

11. The Tribunal affirms the decision under review.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member George

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Associate

Dates of hearing:	2 June 2025
Solicitors for the Applicant:	Self-represented
Solicitors for the Respondent:	Ms Audsley, Australian Government Solicitor