Riley and Repatriation Commission
[2003] AATA 982
•30 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 982
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/33
VETERANS' APPEALS DIVISION ) Re GRAHAME PETER RILEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier RDF Lloyd, Member Date30 September 2003
PlacePerth
Decision The decision under review is affirmed.
..........(sgd RDF Lloyd).............
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – Gold Card - Qualifying Service - ex CMF (Army Reserve) Officer – visit to units in Malaysia/ Sarawak – operational area – inadequacy of Service documented evidence/ records concerning details of visit, although clearly a visit did occur – evidence from official sources in part conflicting with that of applicant – member not formally “allotted for duty as individual to operational area” by relevant Instrument – decision under review affirmed.
Veterans’ Entitlements Act 1986 ss5B(1), 5C, 7A, 85(4A), 120 (4), Schedule 2.
REASONS FOR DECISION
30 September 2003 Brigadier RDF Lloyd, Member 1. This is an application before the Administrative Appeals Tribunal (“the Tribunal”) by Grahame Peter Riley (“the applicant”) for a review of a decision of a Senior Delegate of the Repatriation Commission (“the respondent”) of 20 January 2003. This affirmed an earlier decision, dated 1 November 2002, by a Delegate of the respondent which determined that the applicant had not rendered Qualifying Service for Service Pension purposes under the provisions of the Veterans’ Entitlements Act 1986 (“the Act”) and thus is not entitled to receive the Gold Card.
2. The applicant attended the hearing but was not assisted by an advocate. The respondent was represented by Mr C Ponnuthurai. The Tribunal had before it the documents filed by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”) ,and in addition the respondent tendered the following documents, which were taken into evidence:
· Exhibit R1: Research Report by Writeway Research Service on claims by Major G P Riley relating to his visit to Malaysia, dated 11 May 2003, prepared by C H Ducker.
· Exhibit R2: Extract of Instrument of Allotment of Persons under the Act for period 17 August 1964 to 14 September 1966 – Malaysia, Singapore and Brunei: Schedule 2 Item 7 (2 pages).
No additional documentary evidence was provided by the applicant at the hearing. He gave oral evidence himself, but called no other witnesses. No respondent witnesses were called to give evidence and the applicant declined the offer by the Tribunal to arrange telephone contact with the author of and/or contributors to the Research Report – Exhibit R1, so that he could question or cross examine them during the hearing.
APPLICANT’S SERVICE
3. The applicant’s service was with the Australian Army in the Citizen Military Forces (CMF) - now referred to as the Army Reserve. Whilst the documented evidence concerning his enlistment and details of his appointments in the CMF is extremely limited, it would appear that he enlisted in Tasmania in 1948 and served until 1967. There may have been a break in service as some Service documents refer to his enlistment as being in 1951 (T3 page 7,8,9 and 12 as well as T4 page 13). The 1948 enlistment entry is at T3 page 11. The applicant explains this discrepancy as resulting from a change in his living location in Tasmania which may have caused such a break in service. However, this is not an issue that affects the particular matter before the Tribunal, and this conclusion was acknowledged at the hearing by the respondent’s representative – the important period being 1966-1967 and in particular the early part of 1966.
4. There is little in the applicant’s Service Records in the T documents to show his CMF appointments. However from them (and in part from the applicant’s oral evidence) he was apparently enlisted into what is notated as 3 Supply Company, then served with 12 Infantry Battalion. On reorganisation of that unit he apparently then served in 47 Company and 44 Company RAASC (Royal Australian Army Service Corps). He rose from the rank of private on enlistment to that of major – at which rank he was at the time of discharge in 1967.
APPLICANT’S EVIDENCE AND CONTENTION
5. The applicant’s evidence, in relation to his overseas service, is that he volunteered to take part in a visit program to Malaysia – available to selected CMF Officers at that time, in 1966-1967. Although some doubt exists from his earlier evidence that the visit he undertook was in 1967, in the end result he now maintains it was in early 1966. He states that he left Tasmania by air in, he believes, January that year for Sydney, where he was in Army transit accommodation and was joined by several other officers who were also to undertake the visit to Malaysia. The group then flew by civilian aircraft to Singapore (via Darwin) and from there went to the Army base at Terendak, where the applicant states he joined what he recalls as 3RAR (3rd Battalion, Royal Australian Regiment).
6. Mr Riley’s evidence is that he spent some 2 to 2½ weeks with this Australian Battalion (3RAR?), during which time he took part in the training and patrolling then being undertaken by that unit on the Malay Peninsular. The patrols he says were of half-day duration and were of 10 or 11 man strength. They were transported by vehicle to the designated area and then patrolled on foot in the jungle. He states the patrols were “…chasing CT (Communist terrorists)”, but that they “… didn’t meet up with any”.. During this time with the Australian Battalion at Terendak he was not with the other officers in the visit group, they having been split up – probably to other companies he thinks.
7. After the period in Terendak, the applicant states the group was reunited and taken back to Singapore. They were then flown to Sabah (Jesselton?), where they were transferred to a small aircraft and flown to the area of Tawau. Here he and another officer (now deceased) joined a sub unit of a Malay Ranger Battalion, with the other officers going to other elements which he thinks would have been British Army units. The aircraft he travelled in from Jesselton had flown direct into a small airstrip at the Ranger Base out from Tawau. He spent 2½ to 3 weeks with the Malay Rangers, who he says were operating in the jungle at that time.
8. After the period with the Malay Ranger element, the applicant’s evidence is that he and the other officers (total said to be 4 or 5) were moved to Tawau itself. He does not recall how they were transported there from the Ranger base in the field, but on arrival they were taken on board the Australian Navy Ship HMAS Duchess. The ship then took them direct to Singapore where they disembarked, returned their military clothing and equipment and spent overnight. The next day they returned by civilian aircraft to Australia. Back in Tasmania he believes he was asked to make a written report of his visit, but has no record or copy of it. He assesses the total time for his overseas visit , from departure from Tasmania to his return there, would have been approximately 6 weeks. In this regard he comments in his evidence that as he was in a senior position associated with a newspaper in Burnie at the time, this rather extended absence from his employment was not a problem.
9. The applicant’s contention is that, because he is over 70 years of age and by virtue of his visit to Malaysia and the units involved in early 1966, whilst on full time service (FTS) – or full time duty (FTD), as summarised in paragraphs 5 to 8 above, he has in fact rendered Qualifying Service as defined in the Act. As a consequence he contends that he is entitled to receive the Gold Card.
10. The applicant’s oral evidence was given in a forthright manner. He was cross-examined by the respondent’s representative and answered a number of questions posed by the Tribunal. As a consequence the Tribunal regards him as an apparently honest witness. However, his recollection of some aspects relevant to his visit to Malaysia in 1966 is not as complete as one would expect, even after some 37 years. Nevertheless his evidence was helpful and also relatively convincing within limits.
RELEVANT DOCUMENTED EVIDENCE
11. As already indicated, the applicant’s Service Records available to the Tribunal are minimal. The Tribunal is advised by the respondent’s representative that searches have been made to ascertain whether further documentation is able to be located, and particularly concerning this overseas service by the applicant, but with only very limited success. That which is on record in the T documents shows:
(a)That he was enlisted in the CMF initially in September 1948 and then discharged in October 1950 (T3 page 11 and 12).
(b)That he was apparently enlisted again in September 1951, promoted to the rank of corporal in 1952 and eventually to be a major in 1963 (T3 page 9).
(c)He is shown as being a member of 12 Infantry Battalion in 1954, of 47 Company RAASC in 1955 and 44 Company RAASC in 1967 – albeit the latter two posting entries are somewhat confusing. He is shown as being placed on the reserve in 1967 (T3 page 8).
There is no indication in the Service Records contained in the T documents of any overseas visits by Mr Riley while a member of the CMF between 1948 and 1967. Activities such as this, as with postings or secondments etc, should be recorded on the Service Record of the member and in this case the Tribunal would have expected such a visit to be recorded in his Record of Service Form AAF A103a at Section E (T3 page8).
12. The Research Report provided by the respondent (Exhibit R1) has however uncovered an Army movement document (AAF Mob 3) apparently relating to the applicant – a copy of which is at Attachment 2 of that report. It in part states:
“ Maj Riley GP – 44 Coy RAASC(GT) – CMF Member – Member M/O [Marched Out] under the above quoted authority for Officers Orientation Visit to MALAYSIA”
The authority that the above quote refers to is shown on the document as being “AHQ [Army Headquarters] CANBERRA 877/R1/26”. The receiving unit is shown as “HQ FARELF [Far East Land Force] SINGAPORE – via E COMD PERS [Eastern Command (Sydney) Personnel] DEPOT”.. The departure date is stated as 4 January 1965. However, this date is shown to be incorrect by virtue of Major Riley being recorded (correctly) as having arrived at Headquarters FARELF (Singapore) on 6 January 1966 (not 1965). The validity of this Movement Order document, the reference in it to a Major Riley actually being the applicant, and the corrected date of January 1966 are aspects not contested by the respondent. Nor does the applicant contest the year involved being 1966 rather than the incorrect 1965 entry (or 1967, as he had earlier stated).
13. The Research Report (Exhibit R1) provides further information relative to the applicant’s visit to FARELF in January 1966 (as does Exhibit R2 where notated), in part as follows:
(a)Despite a document search no record is now available to show the applicant’s attachments and movements during his visit in Malaysia, nor his return from Malaysia/Singapore to Australia.
(b)The relevant file entitled “Visits by CMF Officers to Malaysia”, (AHQ 877/R1/26), raised by Army Headquarters, is no longer held by Army Archives – it having been destroyed in 1979 on the basis that it apparently contained nothing of continuing significance.
(c)No record of the applicant’s post-visit report , if one were prepared by him, was located in Army records, nor in Archives or at the Australian War Memorial.
(d)3RAR having been deployed to Malaysia in 1964, returned to Australia in September 1965 (Exhibit R2 also refers), ie. prior to the applicant’s arrival in Malaysia on his visit commencing January 1966.
(e)4RAR served in Malaysia from October 1965 to September 1966 (Exhibit R2). Further, the Research Report states that the battalion (4RAR) was operating in Sarawak from April to September 1966 – dates which would be after the applicant’s visit period January/February of that year.
(f)The author of Exhibit R1, Lt Col C Ducker, states that he was a company commander then second-in-command of 4RAR in Malaysia. He gives evidence in the report that he recalls a CMF major visiting his company for about 3-4 days in early 1966 as an observer, during a short training exercise. However, Lt Col Ducker states that he can recall “…that the officer’s name was not Major Riley, and he was from Victoria…”.. The exercise, he believes, was one conducted in Northern Johore and would have commenced on 10 January 1966. At that time, and for the overall period 1 October 1965 to 14 September 1966, 4RAR is shown by the Instrument of Allotment to be allotted for duty in the designated operational area in Schedule 2 of the Act.
(g)The Exhibit R1 author, Lt Col Ducker, opines in his report that “…in most cases the names of CMF officers visiting units on active service are mentioned in the unit’s war diary on the dates of arrival and departure.” He further states that “…The 4RAR war diary did not show any names of CMF officers who may have visited 4RAR in January 1966 (prior to the unit going to Borneo in April 1966).” The Tribunal notes in respect to this latter statement that it does not cater for the visit by the CMF officer referred to in paragraph 12(f) above by Lt Col Ducker.
(h)Further evidence is given in the Research Report at Exhibit R1 by (now) Major General R A Grey, who served from April 1965 to April 1966 as a major on the Headquarters of 17th Division and Land Forces Borneo on Labuan. The report records that General Grey has stated that:
·“He does not recall Australian CMF officers visiting the Borneo theatre in early 1966 and he was surprised he had not been made aware of it [referring to the applicant’s stated visit].”
·“In the event that they [the CMF officers] had visited the Borneo theatre he was sure a RAASC officer would not have been allocated to visit a Malay Ranger Battalion, let alone go on patrol.”
·“One of the Malay Ranger Battalions was serving at Tawau at the time.”
·“In the absence of Australian RAASC units allocated to Malaysia at the time, it would have been more appropriate and likely to allocate a visiting Australian RAASC officer to a British RASC unit in West Malaysia or perhaps in Borneo.”
(i)In relation to HMAS Duchess, Exhibit R1 shows as follows (Attachment 3 of the Report refers):
·On 19 January 1966 the ship anchored in Wallace Bay (west of Tawau) and carried out gunfire target practice in the river complex. The ship’s Report of Proceedings (ROP) states that “…During this period [of 19 January] five Australian CMF officers were embarked to witness the firings and later [that same day] for passage to Tawau…after disembarking[the officers] off Tawau, proceeded to sea…” The Tribunal notes that this reported presence of CMF Officers appears to conflict in part with the stated recollection of General Grey contained in paragraph 13(h) above.
·HMAS Duchess had commenced guardship duties at Tawau on 8 January 1966. Navy History Directorate records the ship not finally leaving the Tawau area until 1 February 1966 (ROP also refers) and arriving in Singapore on 5 February 1966, via Labuan.
·Lt Col Ducker states that the advice received by him from naval sources is that there would not be sufficient room to reasonably accommodate five additional officers in a Daring Class destroyer, which Duchess was, for four nights at sea.
(j)Lt Col Ducker also opines in his report that visitors to Army units are not normally “allotted” on the strength of the units visited (except for rations – for an extended stay), even though they may be listed on a Movement Order (as in Mr Riley’s case). He further states that the large number of officers who visited Headquarters FARELF and other headquarters or units during Australia’s participation in operations in Malaysia, and also Vietnam, between 1962 and 1972 would normally not be on the unit’s roll book as they were not considered to be on the posted strength of that headquarters or unit. Lt Col Ducker also gives evidence in his report that visits by CMF officers on orientation to Malaysia were shown to be normally of 14 days duration - plus a few days travelling time from Australia and return (by air).
THE LAW
14. Eligibility of an applicant such as Mr Riley for the Gold Card is initially dictated by the provisions of s85(4A) of the Act. This in part requires that:
“(a) the veteran is 70 or over; and
(b)the veteran has rendered qualifying service during the period covered by paragraph (b) of the definition of period of hostilities in subsection 5B(1); and
(c) ……..”
15. In the Act, s5B(1) relevantly defines both “period of hostilities” and “operational area” as follows:
· “period of hostilities means:
(a) …
(b) …
(c) …
(d) …
(e) the period of hostilities in respect of war-like operations in operational areas from 31 July 1962 to 11 January 1973 (both included).”
· “operational area means an area described in column 1 of Schedule 2 during the period specified in column 2 of Schedule 2 opposite to the description of the area in column 1.”
The relevant operational area in this instance in Schedule 2 of the Act is at Item 7, and this states:
· In column 1:
“The territories of Malaysia, Brunei and Singapore and the water adjacent to these countries”
· and in column 2:
“The period from and including 17 August 1964 to and including 30 September 1967.”
16. Another term that is of concern in this matter is that of “allotted for duty”. S5B(1) of the Act states that allotment for duty in an operational area has the meaning given by subsection (2), the relevant part of which states:
“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:
(a)in the case of duty that was carried out in an operational area described in item 1,2,3,4,5,6,7,or 8 of Schedule 2 ( in column 1 ) – to a person, or unit of the Defence Force, that is allotted for duty in the area (whether retrospectively or otherwise) by written instrument issued by the Defence Force for use by the Commission in determining a person’s eligibility for entitlements under this Act; or
(b) …..
(c) ….. “
The Tribunal notes that it is Item 7 of Schedule 2 only that is relevant in this instance.
17. The term Qualifying Service is a key requirement in this matter. As already indicated in paragraph 14 above, the dictating section of the Act – s85(4A), requires a Veteran “.. to have rendered qualifying service during the period …”. This type of service is described in s7A, and that part of the section relevant to the applicant’s service, states:
“(1)For the purposes of Part III and VA and sections 85 and 118V, a person has rendered qualifying service:
(a) if the person has, as a member the Defence Force:
(i) ….
(ii) ….
(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 the Defence Force that was allotted for duty, or as a person that was allotted for duty, in that area; or
(iv) ….”
18. The definitions in the Act of “member of the Defence Force” and “member of a unit of the Defence Force” are contained in s 5C and state as follows:
· “member of the Defence Force includes a person appointed for continuos full-time service with a unit of the Defence Force.”
· “member of a unit of the Defence Force means:
(a) a member of the Defence Force; or
(b) another person who is:
(i) …..; or
(ii) attached to the unit; or
(iii) appointed for continuous full-time service with the unit.”
19. As a matter specifically related to the Act and aspects of law referred to in paragraphs 14 to 18 above, the Tribunal notes also the extracts provided in evidence of the Instrument of Allotment relating to Item 7 of Schedule 2 of the Act – for Malaysia, Brunei and Singapore. These extracts are at Exhibit R2 and in the T documents at T9 page 19, and both are relevant.
20. Put in simplified terms, the criteria for Qualifying Service for members of the Australian Defence Force in conflicts since World War 2 are: official allotment to and relevant service in the operational area designated, and at a time as described in Schedule 2 of the Act.
21. And finally, as a matter of law, the Tribunal is required – in accordance with s120(4) of the Act – to decide this matter to its reasonable satisfaction, ie. on the balance of probabilities.
TRIBUNAL CONCLUSIONS AND FINDINGS
22. The Tribunal’s consideration of this matter is made unduly difficult by the shortfall in Service Record documentation concerning the applicant’s movements and attachments relating to his contended official Army visit to Malaysia whilst an officer in the CMF. This inadequacy in official records would not appear to be the fault of the applicant, nor is it of the respondent – who clearly has made considerable effort to overcome the problem. However, to the Tribunal, it seems unfortunate that Mr Riley, whose claim it is, was not able to obtain for himself additional evidence concerning his overseas visit to help support his claim and thus attempt to fill some of the gaps that were clearly evident. This would have aided the Tribunal considerably.
23. Despite this situation, the Tribunal makes the following findings of fact based on the documented evidence before it:
(a) The applicant was a CMF officer, based in Tasmania and holding the rank of major in 1966 at the time relevant to his claim of having had Qualifying Service on an Army visit to Malaysia.
(b) Despite the Tribunal’s concern regarding some aspects of the Movement Order AAF Mob3 (Attachment 2 in Exhibit R1) involving the applicant’s visit and movement details, it is nevertheless sufficient for the Tribunal to be satisfied that his visit to FARELF Singapore/ Malaysia appears to have been authorised. By virtue of the signature on the Mob3 Form indicating that he arrived at Headquarters Australian Army Force FARELF (Singapore), the Tribunal also accepts that the visit was actually undertaken. The date of arrival in Singapore is clearly 6 January 1966 (not the year of 1965 as is incorrectly notated elsewhere on the form concerning his date of departure from Tasmania).
(c) Based on the notation on the Mob3 Form the Tribunal finds that the purpose of the applicant’s visit was an “Officers Orientation visit to Malaysia” – that is, it was a visit – not a posting, a secondment or a formal attachment. The Tribunal finds no evidence in the applicant’s Service Records in the T Documents, or provided from other sources, to indicate otherwise.
(d) The Mob3 Form shows the applicant as “CMF Member”, however the Tribunal is of the opinion that it could be properly assumed that he would have been placed on full time duty (service) for the duration of the visit - from the date of departure from Tasmania until his return.
(e) There is no official or other documented evidence before the Tribunal to indicate the intended duration of this overseas visit by the applicant. Nor is there any official or other documented evidence of his ‘attachments’ to, or time spent with headquarters or units, nor his movements or activities whilst in Malaysia. Hence, the Tribunal can make no firm finding in this regard.
(f) There is no Army Movement Order (or other document) before the Tribunal concerning the applicant’s return to Australia at the completion of the visit to Malaysia. Hence there is no means by which it can formally ascertain or officially confirm the duration of the visit, or the applicant’s date of return to Australia. From the evidence available, including that of the applicant, it can make no finding of fact in this respect.
(g) Based on T9 page 19 and Exhibit R2, the Tribunal finds that the unit the applicant states that he was involved with at Terendak in January 1966 as being 3RAR could not be correct. 3RAR left Malaysia in September 1965. The Tribunal considers that the only other possibility is 4RAR, which was in Malaysia and was “allotted for duty in the operational area” in January 1966.
(h) With regard to the involvement of the applicant with HMAS Duchess at Tawau, the Tribunal finds his evidence in this regard to be significantly in conflict with the ships “Report of Proceedings (ROP) – January 1966” (Attachment 3 in Exhibit R1). Whilst a visit by 5 CMF officers onto the ship on 19 January 1966 to observe some firing is recorded, all were disembarked the same day at Tawau. Furthermore the ship then undertook other operational sea duties and did not reach Singapore until 5 February. In regard to ROPs generally, the Tribunal’s experience is that it has been found that these reports normally contain considerable relevant detail, as does this one, and are an acceptably accurate daily record. The Tribunal additionally notes that HMAS Duchess is shown in the Instrument of Allotment as being “allotted for duty in the operational area” (Malaysia) from 4 January to 2 March 1966 (Exhibit R2). However, the Tribunal finds no adequate evidence to suggest that the applicant was attached or relevantly involved with Duchess’s operational duties in the area. Even if he had been one of the 5 officers taken temporarily on board to witness the ship’s firing ‘demonstration’, this, the Tribunal finds, would not satisfy the Qualifying Service requirement sought. In this respect the Tribunal notes the applicant’s oral evidence is that he does not recall any firing whilst he was on board (transcript, page 23). This leads the Tribunal to the conclusion that he was not one of the 5 officer group referred to in the ROP.
24. The Tribunal concludes from the evidence before it and its findings, as summarised above, that the applicant’s description of his overall visit, his stated involvement with an Australian Battalion in Malaysia and with Malay Ranger elements in the Tawau area of Borneo are indeed feasible. However, the Tribunal finds that there are a significant number of aspects that do not adequately fit either the officially recorded facts, or the opinion evidence given by well-qualified ex-military officers in this regard. This, in the Tribunal’s opinion and taking all aspects of the evidence into account, leaves the applicant’s contended operational service involvement as being a possibility only. On the evidence available, it is not something which the Tribunal could be relevantly satisfied as being more probable than not, and the Act requires this latter standard of proof for the claim to be successful.
25. Were the applicant and/or the overall evidence to more clearly establish a formal attachment to, and relevant involvement with, either 4RAR in Malaysia or with the Malay Rangers in Tawau, or even with HMAS Duchess – all of which are covered in the Instrument of Allotment, then the result may well be different. However, even if this were established satisfactorily, the Tribunal considers an individual Instrument of Allotment may also be necessary in a case such as the applicant’s overseas period of service – it being clearly classified in evidence only as a visit. Such an individual instrument is not a matter for the Tribunal to pursue, but for Mr Riley if he so chooses.
26. It is indeed unfortunate that the documented records for the applicant’s service are so limited, and that he has not provided supporting evidence or statements from others, otherwise the validity of the claim would more readily be able to be assessed. As it stands, the Tribunal is unable to be satisfied on the balance of probabilities that the applicant has rendered Qualifying Service as defined in the Act.
DECISION
27. Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the Repatriation Commission decision under review of 20 January 2003.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier RDF Lloyd, Member
Signed: ...............(sgd V Wong)..................................
AssociateDate/s of Hearing 2 September 2003
Date of Decision 30 September 2003
Counsel for the Applicant In person
Counsel for the Respondent Mr C Ponnuthurai
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