Stevens and Repatriation Commission

[2003] AATA 636

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 636

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/523

VETERANS'     APPEALS       DIVISION

Re:         NORMAN MAITLAND STEVENS

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       M. J. Carstairs, Member

Date:             4 July 2003

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) M.J. Carstairs

Member

VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ part‑time service ‑ eligibility for disability pension ‑ whether applicant was a veteran or member of the Forces 

Veterans’ Entitlements Act 1986 s69
Defence Act 1903 s31, 32, and 50

Australian Military Regulations 1927 reg. 176, 177

REASONS FOR DECISION

4 July 2003   M. J. Carstairs, Member

1.      This is an application by Norman Maitland Stevens (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 6 August 2001.  The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 5 April 2000, to refuse a claim for disability pension for rotator cuff syndrome, cervical spondylosis and concussion headaches because the applicant was not a veteran or member of the forces within the meaning of the Veterans’ Entitlements Act 1986 (the Act).

2.      At the hearing of this matter on 12 May 2003 Mr B. Turner, an advocate with the Returned and Services League of Australia, represented the applicant.  Mr G. Purcell of counsel, instructed by the Department of Veterans’ Affairs, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T18), together with eleven exhibits (Exhibits A1-A11) lodged by the applicant and three exhibits (Exhibits R1-R3) lodged by the respondent.

BACKGROUND

4.      The applicant was born on 12 May 1928.  His certificate of Service shows that he served in the Australian Army (the army) as follows:

Part-time duty: 18 September 1950 to 17 April 1958 (Citizen Military Forces)

Part-time duty: 13 September 1961 to 11 May 1976 (Army Reserve)

Part-time duty: 15 March 1977 to 28 February 1982 (Army Reserve)

Full-time duty: 1 March 1982 to 6 April 1982 (Citizen Military Forces)

Part-time duty: 7 April 1982 to 17 May 1988 (Army Reserve)

5.      On 8 February 2000 and 20 March 2000 the applicant lodged an application for disability pension and claimed that he was suffering from rotator cuff syndrome (r). shoulder, concussion headaches and cervical spondylosis, all of which were war‑caused.  On 5 April 2000 a delegate of the respondent found that the applicant was not a veteran or a member of the Forces.  On 18 September 2000 the applicant applied to the VRB for review of the decision.  The VRB affirmed the decision. Following the VRB decision the applicant lodged an application for review with the Tribunal on 20 May 2002.

EVIDENCE

6.      In a written statement (undated) headed Summary of Service (exhibit A2) the applicant said that in 1982 there was a manpower shortage in the Regular Army.  Members of the Army Reserve were asked to volunteer for full-time duties.  The applicant said that at the time he had recently retired from his civilian work and was keen to obtain the extra duties and the pay.  He stated that he told Major Broderick, the Officer‑in‑Charge of the Third Military Police Company that interviewed him, that he had been medically downgraded in March 1981 and was due for another medical..  He said that Major Broderick had said that it did not matter what his medical classification was and he would not need another medical. 

7.      In the written statement (exhibit A2), the applicant stated that Major Broderick also told him that he could arrange for a five-year extension beyond the normal retirement age of fifty‑five, which meant that the applicant could serve until 1988 instead of 1983.  In oral evidence the applicant said that the extension to the age of sixty was eventually granted in November 1982.  However, the extension had the effective date of 15 March 1982.  The applicant said that he had signed the form requesting  extension (exhibit A7) on 13 July 1982.

8. The applicant said that he commenced full-time duty on 1 March 1982, under s50(3) of the Defence Act1903 (the Defence Act), with a view to serving until 1988. He said that the Defence Act allows those in the Army Reserve to elect to undertake full-time duty. He stated that he recalled signing forms when he commenced full‑time duty, but these were not attached to his records. The applicant said that he thought he would be able to carry out the duties in the military police. However, he found he was unable to cope with the extra duties and ceased on 7 April 1982. In oral evidence the applicant said that he was not discharged, and did not wish to be, as he may not have been able to pass another medical examination because his health was compromised due to earlier service-related disabilities.  He said that he took the option of having full-time duty terminated.  Under cross-examination he said that his return to part-time duty was by mutual agreement, after he raised his difficulties with his superiors. Thereafter, he served with the reserve component of the military police from 7 April 1982 until his discharge on 17 May 1988. 

9.      In a letter dated 30 April 2001(exhibit A5) Major (ret.) J. Watson stated that in 1982 he was Second-in-Command of the Third Military Police Company.  He said that due to a manpower shortage the applicant undertook full‑time duty.  He stated that his recollection was that the applicant ceased the full‑time duty for medical reasons.  In a further letter dated 20 October 2002 Major Watson said that he believed that the applicant was accepted into the unit despite his reduced medical classification.

10.     In a medical report dated 25 February 2003 (exhibit A3) Dr P. Rogers stated that the applicant sustained an injury during his service which resulted in severe spondylitis..  He said that the applicant found that the injury prevented him from continuing full‑time duty from 1 March 1982 to 6 April 1982, which, Dr Rogers said, was consistent with the condition.

11.     In a document dated 13 March 1982 (exhibit A7) Major Broderick made a recommendation that the applicant, who was due for retirement at the age of fifty‑five in 1983, be given an extension of retirement age.  The document showed that on 13 July 1982 the applicant elected in writing to do so.  In a document dated 19 November 1982 and headed Staff-in-Confidence (exhibit A6), the Chief of Personnel agreed that the applicant be retained after he reached the age of fifty‑five.  Consequently, his  retirement age was extended to sixty years.

12.     In a report dated 4 April 2003 (exhibit R2) Mr J. Essex-Clark of Writeway Research Service stated that army records did not suggest that the applicant had enlisted for an engagement of three years full-time service on 1 March 1982.  He referred to a document dated 1 April 2003 in which Mr D. Gibson of Central Army Records stated that he could find no record of an application to engage the applicant for three years full‑time duty.  Mr Gibson stated that the applicant re‑engaged for six years part‑time duty in the Army Reserve on 15 March 1982.

CONSIDERATION OF THE ISSUES

13. Section 69(1) of the Act provides:

69(1)   Subject to this section, where a person:

(a)has served in the Defence Force for a continuous period that commenced on or after 7 December 1972 and before the terminating date; or

(b)is serving in the Defence Force on or after the terminating date and has so served continuously since a date before that date;

this Part applies to the person:

(c)      if the person:

(i)has served on continuous full-time service as a member of the Defence Force after 6 December 1972; and

(ii)has, whether before or after that date, completed 3 years’ effective full-time service as such a member; or

(d)       if:

(i)the person has served as a member of the Defence Force under an engagement to serve for a period of continuous full-time service of not less than 3 years; and

(ii)the person’s service as such a member was terminated before the person had completed 3 years’ effective full-time service as a member of the Defence Force, but after 6 December 1972, by reason of the person’s death or the person’s discharge on the ground of invalidity or physical or mental incapacity to perform duties; or

…

14. Mr Turner submitted that when the applicant undertook full‑time duty in March 1982, Major Broderick knew of his injuries. The applicant was unable to continue his full‑time duty beyond 7 April 1982 as a result of these injuries. Mr Turner pointed out that under s50(3) of the Defence Act a member of the Army Reserve can undertake to render service as specified by the member:

50(3)   A member of the Army Reserve may, at any time, voluntarily undertake to render continuous full time military service for a period specified by him and, if that undertaking is accepted, he is bound to render that form of service for that specified period or for such period or periods within that specified period as the Chief of Army directs.

15. Mr Turner submitted that the Tribunal should accept the applicant’s evidence that, on the basis of discussions with Major Broderick, he signed on and verbally agreed to do six years service. That is, the applicant specified a period in which he wished to serve, and Major Broderick accepted that undertaking, as contemplated within s50(3) of the Defence Act. Mr Turner submitted that, as events turned out Major Broderick terminated the applicant's full‑time service on medical grounds. He submitted that s120(6) of the Act puts no onus on a person to prove any matter relevant to determining a claim, and as the legislation was beneficial, it should be applied in the applicant’s favour despite the absence of official records.

16. Mr Purcell submitted that the applicant satisfied s69(1)(a) of the Act, but was unable to satisfy s69(1)(c). The only exception to the requirement of s69(1)(c)(ii) that a person have completed three years effective full‑time service is provided by s69(1)(d) of the Act, which allows for the circumstances of discharge under three years on the grounds of physical incapacity or invalidity. Apart from the exception provided by s69(1)(d) of the Act, it was a mandatory requirement of s69 of the Act that a person establish three years of continuous full‑time service. Mr Purcell said that the only period in which the applicant was on full‑time service as a member of the Defence Force (s69(1)(c)(i)) was the period 1 March 1982 to 7 April 1982.  Mr Purcell submitted that the applicant did not undertake an engagement for a period of three years (s69(1)(d)(i)). He said that s69(1)(d) of the Act must be read with s69(1)(c) of the Act, so that the person must have undertaken an engagement on the basis of serving for three years.

17.     Mr Purcell submitted that even if the applicant’s evidence was accepted, that the applicant and Major Broderick agreed that the applicant would serve full‑time until retirement age, at the time of those discussions retirement age could refer only to the applicant turning fifty‑five in 1983.  It was not until November 1982 that the applicant was approved to remain until 1988, with a retirement at the age of sixty.  Mr Purcell said that when the approval was given, the applicant had returned to part‑time duty in the Army Reserve.  Mr Purcell submitted that it was unlikely that Major Broderick, as Officer‑in‑Charge, would agree to the engagement of a person with medical problems on anything other than a short-term basis.

18. Mr Purcell submitted further that it was necessary under s69(1)(d)(ii) of the Act that the person be discharged.  On the applicant’s evidence he was not discharged, merely transferred from one part of the Army to another.  Therefore s69(1)(d) of the Act could not apply.  Furthermore, Mr Purcell submitted that if the applicant was discharged in March 1982, he was not discharged on the basis of invalidity, as this would be recorded in his statement of service.  He submitted that the Army maintains a detailed system of records, which would show medical reports and like material, if health reasons were the basis of the cessation of full‑time duty in any formal sense.

19.     The Tribunal reached its decision taking into account the written and oral evidence and submissions. 

20. Section 69(1)(c)(ii) of the Act sets out that as a requirement for entitlement under s70 of the Act a person must have three years effective full‑time service.  The term effective full‑time service is defined in s68 of the Act as any period of continuous full-time service with certain named exceptions, none of which apply in this case.

21.     To come under the exception to the three years effective full‑time service, section 69(1)(d) of the Act requires that a person be able to show that the person was on an engagement to serve full‑time, continuously and for not less than three years. Where a person has made a voluntary undertaking of the kind referred to in s50(3) of the Defence Act, s69(7)(d) of the Act deals with the circumstances of engagement in the following way:

69(7)   Where a member of the Defence Force who has rendered continuous full-time service in pursuance of a voluntary undertaking given by the member and accepted by the appropriate authority of the Defence Force was not serving on continuous full-time service immediately before the member commenced to render that service:

…

(b)…the member shall be deemed, for the purpose of paragraph (1)(d), to have been engaged to serve as a member of the Defence Force on that day for service for the period for which the member was bound to serve on continuous full-time service by virtue of that undertaking.

22.     The applicant’s evidence was that he discussed with Major Broderick that he would continue full‑time duty until 1988 and this was the basis on which he undertook full‑time service.  However, the Tribunal finds that at the time of the discussion, before he commenced full‑time duty in March 1982, the applicant could only serve full‑time until his retirement age of fifty‑five years in 1983.  On the basis of the facts and in the absence of any evidence to the contrary, the Tribunal finds that that the engagement contemplated at March 1982 could not have been for three years.  This finding is not affected by the later decision, in November 1982, to extend his retirement date to the age of sixty.  This is so even if the November 1982 decision had an effective date of 15 March 1982, while the applicant was still engaged in full‑time duty.

23.     Therefore, the Tribunal finds that the applicant does not meet the requirement of s69(1)(d) of the Act that he has served as a member of the Defence Force under  an engagement to serve for three years.  In addition the Tribunal was not satisfied that the applicant was discharged.  Although this term is not defined in the Act, it should be given its ordinary meaning in the context of military service.  The Macquarie Dictionary defines discharge as to relieve or deprive of office…dismiss from service.  Assistance can be gained from the terms defined in, and the requirements of, the legislation relating to military service. Section 31 of the Defence Act sets out that the Army consists of two parts: the Permanent Military Forces and the Army Reserve.. Section 32(b) of the Defence Act provides that the former includes officers and soldiers transferred to the Regular Army from the Army Reserve.

24. The Defence Act provides for the making of regulations dealing with matters such as enlistment, promotion and discharge. In regard to the army, these are the Australian Military Regulations 1927 (the Regulations). In 1982, Reg.176 (since repealed) provided the grounds for discharge under the Defence Act, including that the soldier was medically unfit: Reg.176(1)(h). Regulation 177 provided that the discharge of a soldier for any of the reasons prescribed in Reg. 176(1) required an order for discharge signed by the Chief of the General Staff. It was not part of the applicant’s case that he was discharged at the end of the period of full‑time duty. His evidence was essentially that he had returned to part‑time duty by agreement and wished to avoid being discharged. Although the return may have been for reasons of health, s69(1)(d) of the Act provides only for discharge on the grounds of incapacity. 

25.     The Tribunal accepts Mr Purcell's submission that the Army maintains a detailed system of records, which would include medical reports, if health reasons were the basis of the cessation of full‑time duty in any formal sense.  Therefore, there would be formal records of a discharge on medical grounds.  The Tribunal finds that the applicant's return to the Army Reserve was a matter of mutual agreement after the applicant raised his difficulties with his superiors.  However, this does not satisfy the requirements of establishing discharge on the grounds of invalidity or physical or mental incapacity.

26. For these reasons the Tribunal finds that the applicant’s circumstances of service from 1 March 1982 do not meet the requirements of s69(1) of the Act, and the applicant was not a veteran or member of the Forces so he is not eligible to be paid disability pension under s70 of the Act.

DECISION

27.     The Tribunal affirms the decision under review.

I certify that the twenty‑seven [27] preceding paragraphs are a true copy of the reasons for the decision of:

M.J. Carstairs, Member

(sgd)       Olympia Sarrinikoloau

Clerk

Date of hearing:  12 May 2003

Date of decision:  4 July 2003

Advocate for applicant:                Mr B. Turner, Returned and Services

League of Australia

Advocate for respondent:            Mr G. Purcell, Department of Veterans' Affairs