Paul Sykes and Repatriation Commission
[2012] AATA 276
•9 May 2012
[2012] AATA 276
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4530
Re
Paul Sykes
APPLICANT
And
Repatriation Commission
RESPONDENT
Decision
Tribunal Senior Member Isenberg
Date 9 May 2012 Place Sydney The decision under review is set aside and in substitution therefor it is decided that the Applicant did render qualifying service as defined in section 7A of the Veterans’ Entitlements Act 1986.
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Senior Member Isenberg
VETERANS’ AFFAIRS: Entitlements – whether Applicant rendered qualifying service – whether Applicant was allotted for duty – instrument of allotment - concept of ‘detachment’ – decision under review set aside
Veterans’ Entitlements Act 1986 : ss 5B(1), 7A(1)(iii), (iv), Schedule 2
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Instrument of Allotment, 23 December 1997
Coulthard-Clark C, The RAAF in Vietnam : Australian Air Involvement in the Vietnam War 1962-1975 (1st ed , Allen & Unwin, 1995)
Grey J, Up Top, The Royal Australian Navy and Southeast Asian Conflicts 1955-1972 (1st ed, Allen & Unwin, 1998)
REASONS FOR DECISION
Senior Member Isenberg
Background
This is an application under section 175(2) of the Veterans' Entitlements Act 1986 ("the VEA") for review of a decision of the Repatriation Commission which found that Mr Sykes did not render qualifying service within the meaning of that term in section 7A(1)(iii) or (iv) of VEA.
Issue
The sole issue in the matter is whether Mr Sykes’ service with the RAAF includes a period of qualifying service as defined in the VEA.
Law
The Tribunal must consider this application according to its ‘reasonable satisfaction’: see s. 120(4) of the VEA.
Qualifying service has the meaning given under s. 7A of the VEA, relevantly as follows:
7A Qualifying service
(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:
…
(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 ...
Under the qualifying service provisions of the VEA that relate to service during the relevant period, three elements need to be satisfied.
Firstly an operational area, per s. 7A(1)(a)(iii) and 5B(1), needs to be determined. Two operational areas apply to the Vietnam War as listed in Schedule 2 of the VEA under Items 4 and 8:
Schedule 2 - Operational areas
…
4. Vietnam (Southern Zone).
The period from and including 31 July 1962 to and including 11 January 1973
…
8. All that area of land and waters (other than land or waters forming part of the territory of Cambodia or China) bounded by a line commencing at the intersection of the boundary between Cambodia and Vietnam (Southern Zone) with the shore of Vietnam (Southern Zone) at high water mark; thence proceeding in a straight line to a point 185.2 kilometres west (true) of that intersection; thence proceeding along an imaginary line parallel to, and at a distance of 185.2 kilometres from, the shore of Vietnam at high water mark to its intersection with the parallel 21 degrees 30 minutes north latitude; thence proceeding along that parallel westerly to its intersection with the shore of Vietnam at high water mark; thence following the shore of Vietnam at high water mark to the point of commencement.
The period from and including 31 July 1962 to and including 11 January 1973
Secondly, an individual needs to have been allotted for duty under the VEA, either on an individual basis or as a member of a unit that was allotted, see:
5B War and operational area related definitions
…
Allotted for duty
(2) A reference in this Act to a person, or a unit of the Defence Force, that was allotted for duty in an operational area is a reference:
… or
(c) to a person, or unit of the Defence Force, that is, by written instrument signed by the Defence Minister, taken to have been allotted for duty in an operational area described in item 4 or 8 in Schedule 2 (in column 1). (Tribunal’s emphasis)
...
The relevant instrument of allotment is that made by the Minister for Defence, Industry, Science and Personnel on 23 December 1997 (‘the Instrument’) which, under paragraph 5B(2)(c) of the VEA, determined that:
…
(b) each person included in a class of persons specified in Schedule B to this instrument to have been taken to have been allotted for duty in the operational areas described in item 4 and 8 in Schedule 2 (in column 1 of that Schedule) to the Act during the period determined according to paragraphs 1 and 2 in Schedule B; …
…
Schedule B
Class of Persons
…
Aircrew members of Australian Air Force Detachment Sangley Point.
Thirdly an individual needs to have actually served in the operational area in accordance with their allotment. That is a question of fact in each matter.
The hearing
It was decided, with the consent of the parties, that this application would be determined on the papers, in accordance with section 34 J of the Administrative Appeals Tribunal Act 1975.
The Applicant’s service
The applicant enlisted in the RAAF on 7 September 1961 and was discharged on 30 November 1969. He later re-enlisted, serving nearly another 20 years. It is his first period of service that is relevant to this application.
On 11 December 1967 the Applicant transferred to 11SQN. Relevantly, his Personnel Occurrence Report referred to Flight Officer Sykes (and others) as follows:
Departed 18 MAY 66 by service aircraft on temporary duty to SANGLEY POINT NAS then to BUTTERWORTH by service aircraft Returned 9 JUN 66 by service aircraft on completion of temporary duty. Auth HQRIC Ops Order l/66
[Tribunal note: NAS was explained to mean Naval Air Station.]
A flight on 26 May 1966 is recorded in the applicant's log book as "OFFENSIVE OPS EX SEA IMP".
Respondent submissions
The respondent contended that notwithstanding the Applicant was at Sangley Point and that, by virtue of the flight of 26 May 1966, served within Vietnamese airspace, he was not an "Aircrew member[s] of Australian Air Force Detachment Sangley Point" as required by the Instrument. The respondent contended that being physically present at Sangley Point is not sufficient to be a member of Australian Air Force Detachment Sangley Point - the applicant must actually have been formally allotted to Australian Air Force Detachment Sangley Point.
The Respondent referred me to the official history of RAAF operations in Vietnam, The RAAF in Vietnam; Australian Air Involvement in the Vietnam War 1962-1975, and the official history of RAN operations in Vietnam, Up Top, The Royal Australian Navy and Southeast Asian Conflicts 1955-1972, by way of background. Relevantly, they record that Sangley Point was an American naval air station in the Philippines from which 11 SQN flew reconnaissance anti-submarine patrols escorting HMAS Sydney to Vietnam as part of Operation TRIMDON, until 9 June 1965. The Respondent contended that the RAAF Detachment at Sangley Point was a temporary detachment that only existed for the duration of Operation TRIMDON. The Respondent noted that the flight is referred to in the log being as being part of SEA IMP, which was a peacetime SEATO exercise during May 1966. Participation in SEA IMP, of itself, is not considered qualifying service.
The respondent contended that there is a clear distinction between ‘Australian Air Force Detachment Sangley Point’ and ‘Sangley Point Naval Air Station’, as recorded in the Applicant’s Personnel Occurrence Report. The ‘Australian Air Force Detachment Sangley Point’ was a temporary unit whereas ‘Sangley Point Naval Air Station’ is a permanent facility which belonged (at the time) to the United States Navy. The Respondent contended that there was no Australian unit that was allotted for duty to 'Sangley Point Naval Air Station'. This was simply the location at which the 'Australian Air Force Detachment Sangley Point' was temporarily based.
The Respondent also contended that "Detachment" has a well understood meaning. In the RAAF, when a single, or small number of aircraft, are tasked for a specific duty away from the unit's home base, then this is a Detachment. The Respondent relied on an email from Wing Commander Brian Young, Nature of Service Branch, dated 7 March 2012 to the effect that " ...for admin purposes it is simpler to task a Detachment (through an Operation/Administration Order containing detailed tasking, personnel, support etc requirements), rather than to task individual aircraft and ADF members to conduct the required task".
Consideration
There was no dispute that Mr Sykes was a RAAF member, and that he served at Sangley Point. The Respondent further accepted that the Applicant, by virtue of the flight of 26 May 1966, served in an operational area. The remaining question for the Tribunal is simply put: was the Applicant allotted for duty as part of ‘Aircrew members of the Australian Air Force Detachment Sangley Point’?
The crux of the Respondent’s submissions was that being physically present at Sangley Point is not sufficient to be a member of Australian Air Force Detachment Sangley Point.
I accept that Sangley Point Naval Air Station was an American naval air station in the Philippines from which 11 SQN flew as part of Operation TRIMDON, until 9 June 1965. The Respondent accepted that the Applicant had served at Sangley Point but disputed that he had been part of the Detachment, asserting that the RAAF ‘Detachment’ at Sangley Point was a temporary one that only existed for the duration of Operation TRIMDON.
It was altogether unclear to me why the Respondent so adamantly contended that provision in the Instrument as to the Sangley Point detachment was limited in time to Operation TRIMDON. The Instrument contains no such limitation. The Respondent could not take me to any evidence that might so limit the Instrument. As far as I could see there was no basis whatever for the contention.
What then is a ‘detachment’? The term is not defined in the VEA. The Respondent’s evidence was that for administrative purposes it is simpler to task a ‘detachment’ rather than to task individual aircraft and ADF members to conduct the required task. This did not suggest to me that the term has any technical meaning, and instead reflects a state of affairs, namely that ADF members are ‘detached’ to undertake a particular task, which suggests some temporary element to the posting. The Oxford English Dictionary defines ‘detachment’ in the military context as:
The separating and dispatching of part of a body of troops, etc., on special service.
The Applicant’s service record was to the effect that he was serving with 11 SQN at Richmond when he, and others, on 18 May 1966, departed on temporary duty to Sangley Point Naval Air Station. There, according to his evidence, which is not disputed, he participated in exercise SEA IMP during May 1966 and also a flight on 26 May 1966, into Vietnamese airspace on ‘offensive ops’. He returned via Butterworth to Richmond, according to his service records, on 9 June 1966. I find that he was part of a detachment with the RAAF to Sangley Point, in that he was on special service to undertake a task, namely to participate in an exercise, during the course of which he flew into Vietnamese airspace.
It is correct that Sangley Point Naval Air Station is simply the location at which the 'Australian Air Force Detachment Sangley Point' was temporarily based. The Respondent submissions were to the effect that Australian Air Force Detachment Sangley Point were temporarily based at Sangley Point Naval Air Station but I consider the Respondent’s contention that there is a clear distinction between ‘Australian Air Force Detachment Sangley Point’ and ‘Sangley Point Naval Air Station’ to be wholly artificial.
Conclusion
Accordingly it may be taken that the Applicant was allotted for duty in an operational area, namely as part of the Australian Air Force Detachment Sangley Point described in the Instrument. I am therefore reasonably satisfied that the Applicant’s service with the RAAF includes a period of qualifying service as defined in the VEA.
Decision
The decision under review is set aside and in substitution therefor it is decided that the Applicant did render qualifying service as defined in section 7A of the VEA.
26.
27. I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
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Associate
Dated 9 May 2012
Hearing on the papers 10 April 2012 Applicant In person Advocate for the Respondent Mr N Bunn, Department of Veterans' Affairs
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