Oxley and Repatriation Commission

[2006] AATA 350

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 350

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/786

VETERANS’ APPEALS DIVISION		)
Re		DAVID OXLEY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date12 April 2006

PlaceBrisbane

Decision The applicant is not eligible to receive a disability pension under the Veterans Entitlements Act 1986. The decision under review is affirmed.

……......[Sgd]…………

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – application for disability pension – applicant voluntarily discharged – applicant not discharged on medical grounds – unable to satisfy discharge requirement in s 69 VEA

Veterans Entitlements Act 1986 s 69, s 70

Whiteman v Secretary, Department of Veterans’ Affairs (1996) 43 ALD 225

REASONS FOR DECISION

12 April 2006 Senior Member B J McCabe         

introduction

1.      Mr David Oxley served in the Australian Army from 30 April 1986 until 29 June 1988. He subsequently joined the RAAF on 19 June 1991 and was discharged less than three years later on 31 May 1994. The discharge papers suggest Mr Oxley was discharged at his own request. He has claimed a pension under the Veterans Entitlement Act 1986 (the VEA) on the basis of his defence service. The respondent declined to grant the pension because the applicant did not serve in the defence forces for a continuous period of three years – a requirement imposed in s 69(1) of the VEA. Mr Oxley has asked the Tribunal to review that decision.

the material before the tribunal

2. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act1975. It was also provided with a bundle of documents that included a statement of the applicant. The matter came on for hearing before the Tribunal on 3 August 2005. The applicant gave some evidence and the matter was adjourned to afford the respondent an opportunity to obtain some extra information. The material provided by the RAAF was subsequently tendered at the resumed hearing in Townsville on 15 March 2006. Some other documents were also tendered by the applicant.

3.      Mr Oxley was represented by Mrs Rankin, a lay advocate with the Vietnam Veterans’ Association. Mr Smith represented the respondent at the resumed hearing.

the factual background

4.      Mr Oxley was originally a member of the British Army. He joined the Australian Army and served as a cook. There seems to be no dispute that he was discharged from the Army at his own request. He remained a cook when he joined the RAAF. He said he wanted to stay in the RAAF throughout his career but was becoming concerned that he may not have a future as a cook because the RAAF was outsourcing some functions. He said he was interested in joining the security police: he felt his army experience would suit him for that kind of work.

5.      The documents suggest the applicant was unhappy during his time in the RAAF. He told an RAAF doctor on 25 August 1993 that he was distressed by frequent and sudden moves. He also said he found his work unfulfilling and was not confident of his promotion prospects. He appeared to have particular difficulty while he was posted to East Sale. There was interpersonal conflict. He was transferred to Williamtown and was required to attend sessions with a psychologist.

6.      The applicant’s medical records suggest he was physically fit (although there is also some evidence that he suffered from a back condition). Notwithstanding the evidence that the applicant had been referred to a psychologist, the records do not suggest he was not mentally fit to serve.

7.      The applicant told the Tribunal he learned he would not be accepted into the RAAF police. He was apparently regarded as an unsuitable candidate. He says he became frustrated and decided to seek a discharge. He was discharged in due course without any reference in his discharge papers to a psychiatric condition. He has subsequently been diagnosed with a psychiatric condition.

8.      Mrs Rankin, for the applicant, said the RAAF failed in its duty to investigate the applicant’s condition. She says he should have been referred to a psychiatrist who might have offered a diagnosis that could have affected the basis on which he was discharged. She argued it was a medical discharge in all but name. She went on to say if the RAAF had done its duty and discovered the applicant’s psychiatric condition he might not have reached his current state.

the legislation

9.      The claim is governed by Part IV of the VEA, which deals with persons who rendered defence service. Section 70 of the VEA says a disability pension may be paid to “a member of the forces”. Section 69 provides a qualification: s 69(1) says the member of the forces in question must have served for a continuous period of thee years commencing on or after 7 December 1972. However a person who signs up for longer than three years but who served a shorter period may still qualify if their service was terminated early because the person was discharged “on the ground of invalidity or physical or mental incapacity to perform duties.”

10.     The discharge documents say the applicant was discharged at his own request. The applicant agrees he requested the discharge, and the medical records do not suggest the applicant was judged to be medically unfit prior to his discharge. But that might not be the end of the matter. The Federal Court recognised in Whiteman v Secretary, Department of Veterans’ Affairs (1996) 43 ALD 225 that it is possible to go behind what the documents say in appropriate cases and determine the truth or substance of the matter. In Whiteman, the soldier was injured and was unable to return to his previous duties. He was offered a choice by his superiors: move to the work of a storeman, or accept a discharge. The soldier elected to take the discharge. The completed paperwork suggested the applicant sought a discharge. The true position was different. The soldier thought he was being discharged on the grounds of his invalidity. The supervisors who approved his discharge apparently approached the discharge on that basis. The Court said the decision-maker should have regard to the real reasons for the discharge. Madgwick J explained (at 234):

The question for the decision-maker, when determining an applicant’s eligibility, would be this: is the applicant to be regarded, as a matter of ordinary language, as having been discharged on the ground of his or incapacity to perform duties?

11.     Mr Oxley was diagnosed with psychiatric problems some time after his discharge. He might not have been a well man at the time he left the RAAF. He was certainly experiencing behavioural problems and was receiving counselling at the direction of his superiors. It is possible that more diligent inquiries by his supervisors and the doctors who examined him at various times prior to his discharge would have identified psychiatric problems that would have affected the way in which his career was handled. Rightly or wrongly, that did not occur. Mr Oxley’s supervisors did not in fact form the view that Mr Oxley was not fit for service. He asked for a discharge, and he was given one. He cannot satisfy the words of s 69.

conclusion

12.     The applicant is not eligible to receive a disability pension under the VEA. The decision under review must be affirmed.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe

Signed:         Adam Ryan
  Associate      Adam Ryan

Date of Hearing  3 August 2005 & 15 March 2006         
Date of Decision  12 April 2006
The applicant was represented by Ms Rankin, a lay advocate.
The respondent was represented by Mr Smith, a department advocate.