Stevens and Repatriation Commission (Veterans' entitlements)

[2021] AATA 27

Stevens and Repatriation Commission (Veterans' entitlements) [2021] AATA 27 (20 January 2021)

Division:VETERANS' APPEALS DIVISION

File Number:          2019/7745

Re:Edwin Stevens

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans-Bonner

Date:20 January 2021

Place:Perth

The Reviewable Decision, being the decision of the Veterans’ Review Board dated
3 September 2019, is affirmed.

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Senior Member Dr M Evans-Bonner

CATCHWORDS

VETERANS’ ENTITLEMENTS – whether Applicant entitled to claim a disability pension – appeal from decision of Veterans’ Review Board – eligible war service – operational service – operational area – whether continuous full-time service in an operational area as a member who was allotted for duty in that area – Applicant seeking recognition for involvement in operation in Laos in February 1970 – no official record of Applicant serving overseas whilst in the Australian army – reviewable decision affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) – ss 5B, 5B(2), 5C, 6C(1), 7(1)(a), 9, 9(1)(b), 13(1), sch 2

REASONS FOR DECISION

Senior Member Dr M Evans-Bonner

20 January 2021

THE APPLICANT

1. Mr Stevens enlisted with the Australian Army in 1969 when he was 18 years of age. He was posted to the Special Air Service Regiment in November of that year, where he served until his discharge in April 1970.

   THE APPLICATION

2. On 26 November 2019, Mr Stevens applied to this Tribunal seeking review of a decision of the Veterans’ Review Board (VRB) dated 3 September 2019. This is the Reviewable Decision currently before the Tribunal. The Reviewable Decision affirmed a determination of the Repatriation Commission dated 22 March 2019 that Mr Stevens was not entitled to a disability pension (Pension) under the Veterans’ Entitlements Act 1986 (Cth) (VEA).

3. Mr Stevens initially completed a claim form on 1 October 2018 for the conditions of “post-traumatic stress disorder”, “continual anger” and “depression” which he believed were due to undertaking a covert operation in Laos in February 1970.  He had been given the claim form by a staff member at the office of his local federal member of Parliament (MP). However, at that time he did not realise that he was claiming compensation by way of a Pension for these conditions.

4. This was because, as Mr Stevens explained at the hearing, it was not his intention to apply for a pension. What Mr Stevens was in fact seeking was “recognition for what I was ordered to carry out [being a covert operation in Laos] during the first two weeks of February 1970” (letter to the Respondent’s representative dated 1 November 2020). He explained that he thought that the MP’s office was assisting him to obtain official acknowledgment of his involvement in the operation and so he completed the claim form, not understanding the nature of the form he was completing.   

   PREVIOUS ATTEMPTS TO OBTAIN RECOGNITION

5. Mr Stevens has tried to obtain confirmation of his involvement in the covert operation, but no record of his involvement could be located. Specifically, Mr Stevens sent a letter to the Australian Army which was received on 18 May 2004. However, when the Australian Army wrote back to him on 29 July 2004 the letter stated that, “I regret to advise that a thorough search of this office has failed to locate any documents which substantiate the events referred to in your enquiry”.

6. Mr Stevens also wrote to the Australian Army in a letter dated 18 August 2004 (received on 23 August 2004) seeking his medical records and additionally:

   a document related to the task in that I did perform in Vietnam during the month of February. I do understand that these tasks carried out by the Special Air Service personnel and these tasks are called “Black Ops” and as I was told there would be no record placed on my service prior to or after the task there must be a record of it somewhere.

7. The Australian Army responded to Mr Stevens in a letter dated 24 August 2004 which stated:

   This agency has no record of you ever having served in South Vietnam and is therefore unable to assist you any further with this part of your inquiry. If you can provide evidence of your overseas service this office would be more than happy to re-examine your request.

8. Mr Stevens also wrote to the then Minister of Defence, Senator Payne, in a letter dated

   
   

   22 August 2017 and enclosed a detailed account of the operation. In this letter he described being “tormented” by flashbacks and asked: “[w]ould you please have this operation acknowledged in some form so that I may at least know I have served to assist my country in this war”. However, after an investigation the Department of Defence wrote that “[t]here is no record held which would indicate Trooper Stevens served overseas whilst serving in the Australian Army.” The investigation report concluded that Mr Stevens, “joined SASR during November 1969 but was unfit for further service, let alone deployable from that month to the end of his service”.

   THE APPLICANT’S EVIDENCE

9. Mr Stevens has provided detailed statements to the Respondent and to the Tribunal describing the covert operation. In summary, he stated that he was deployed to Laos to assist in bombing a bridge that was close to the Vietnamese border and that he was instructed to kill the sentry (soldier guarding the bridge) with a knife while his partner set explosive charges under the bridge. In one statement dated 9 July 2019, Mr Stevens attested:

   I was serving as a Trooper In the Special Air Service Regiment of the Australian Regular Army posted to the regiment's Base Squadron during the first days of February 1970. I was summoned to the Regimental Major's office where he was in company with my Squadron C. O., Major, W. Marshall and Lieutenant J. Flannery. I was ordered that in company with another Trooper I would travel to a section in Laos, a country under United Nations military sanctions and assist in the destruction of a bridge that Intelligence had identified that the North Vietnamese Army and Viet Cong were using to ferry soldiers, armoury, ammunition and supplies into Vietnam. I was informed that I had been recommended for this mission by Lt. Flannery who had been the C.O. of my Cadre Course and was later my C.O. when I assisted with new cadre courses during training. I asked why 3 Squadron that was currently in Vietnam couldn't do this job and was told that it was otherwise occupied therefore I was ordered to undertake this mission. I objected, pointing out that I was awaiting release from the Army, but was told that while I was in the Army I would do as ordered. I was also given the order that I was not to discuss this job with any Trooper in the Regiment or anybody else prior to the mission or after as it was not going to be officially recorded.

   The intelligence gathered reported that after daylight hours there was only one sentry on the bridge and that the early hours in the morning was the best time to complete the mission. My task was to silence any bridge-sentry and search for any log books or other documentation if any. Lt. Flannery knew my night and map-reading skills were good and told me that was why I was selected to go. He, as a former Vietnam Trainer, taught me how to use a blade to silence the sentry as my partner, Jeff, was to set charges on the bridge then blow it up. Our Liaison Officer in Vietnam was a Lieutenant from 3 Squadron.

   The Liaison Officer met us at Nui Dat at the start of the second week when we landed after one stop that, I presumed, was for refuelling. He issued the explosives and charges to my partner. I was given the radio, our frequency and call-sign and the Liaison Officer's call-sign. We were then driven to where a helicopter was waiting which we both boarded. There were two pilots and two gunners situated on each side of the helicopter. Once at the drop-zone we left the chopper as the vegetation was low and made it possible. We both lay on the ground after the chopper left just to ensure we were alone. We were approximately ten miles from the bridge at that time and the vegetation gave us adequate cover. The terrain was not steep so we were able to move slowly but easily. After approximately three hours we got to within 100 yards of the bridge where we set up our position under the vegetation. We lay head to toe so we had a full 360-degree vision but I was also responsible for counting the number of enemy vehicles over and back, the number of soldiers, armoury and ammunition trucks. We lay watching and recording every vehicle that went across that bridge. At night we took two-hourly breaks each to sleep and eat as during daylight hours neither of us ate or slept.

   Whenever a truck full of soldiers (a platoon – 30 men) arrived at the Laos side the soldiers disembarked and once the truck was safely over to the Vietnam side of Laos the men walked across, remounted the truck and then drove off. Any truck with ammunition and a towed artillery piece behind it was guided by the bridge-sentry as the truck moved over slowly. It was obvious that this bridge was not too secure as the intelligence photos showed. In all I counted 23 trucks, approximately 400 soldiers in 13 of the trucks. There were more in the trucks that carried arms, ammunition and artillery pieces and they also dismounted leaving only the driver and remounted on the other side. I do not remember how many artillery pieces crossed that bridge as I did not keep my note pad; there were 5 to 7 from memory. Ten to twelve vehicles returned empty and went over to the Laos side. I have no idea if they returned.

   On the 4th night we went to the bridge, approximately between 03.00 hours and 03.30 hours, I went to the sentry's hut and did what I was taught to do [killed the sentry with a knife]. There was no records or log-books in the hut so I searched the dead sentry. He had nothing except a packet of cigarettes, matches and a photograph of him and his wife holding their baby. I returned it to his left breast-pocket. I gave my mate a flicker of my lighter so he knew it was all clear for him to do his job. By the time I got to him he had the whole bridge set to go. Once a safe distance away he blew up the bridge and we grabbed the rest of our gear and ran, stopping every 100 yards or so to listen if the enemy was behind us and following. They were not, so we slowed to a fast walk for about a mile listening as we moved through the vegetation as we first went in - patrolling. Thankfully the vegetation in the area gave us adequate cover which made the going easier than we had anticipated. By approximately 05.00 hours we arrived back at our drop-zone ready for pick up. I called our Liaison Officer who told me we had to wait until he could get the chopper to our position for pickup. It took about two hours but when it came we mounted it and returned to Nui Dat where again, the Lieutenant was waiting in a jeep. He took our note-books and after debriefing us where we stood, he told us that they had intelligence that the NVA and VC were getting ready for a big advance on our troops so what we did may have saved some of our Diggers' lives. We were then driven to what was referred to as SAS Hill, showered, changed to clean jungle greens and socks and then fed. We returned to Campbell Barracks six days after we left where we were debriefed again by Lt. Flannery.

   I spoke to my Sergeant, Ian Ramsey, about it. He informed me that being so close to Joe Flannery and seeing part of my training he knew everything I did and after we discussed it I told him that I was angry that I was ordered to do what I did and he told me, that’s the job, we all do it so suck it up and get on with it. Until my final discharge I again assisted on Cadre Courses and regimental duties.

   Because I was ordered never to divulge anything to do with that job to anyone I took that order to be in force even after my discharge. I was extremely angry at what I was ordered to do with a minimum of training or preparation.

10. In another statutory declaration dated 9 July 2019, Mr Stevens also attested as to how he had tried to locate Major Marshall, Lieutenant Flannery and Sergeant Ramsay but they were deceased or presumed deceased due to their likely ages. 

11. In another statement, Mr Stevens described being “haunted all my adult life” by having to kill the sentry during the covert operation and after seeing the photograph of the sentry’s family. He stated that following the event, “I had never been so scared in my life…”. Mr Stevens’ evidence was that the incident traumatised him and has affected him for the whole of his adult life, including by contributing to the breakdown of his marriage and affecting his relationship with his children. Dr Spear, a consultant psychiatrist, found Mr Stevens to be “a convincing and consistent historian” and that the “most likely diagnosis according to the DSM-5 criteria” for Mr Stevens was posttraumatic stress disorder.  

    ELIGIBILITY FOR A PENSION

12. As noted above, Mr Stevens is seeking official acknowledgment of his involvement in the covert operation. However, the application before this Tribunal is about something different. The question that the Tribunal can review is whether Mr Stevens is entitled to a Pension. The Tribunal has access to the same documents that the parties do. Unfortunately for

    
    

    Mr Stevens there is nothing further that the Tribunal can find that may assist Mr Stevens to obtain recognition or confirmation of his involvement with the covert operation. This was discussed at the hearing, and Mr Stevens was nevertheless willing for the Tribunal to decide the Pension application in the hope that it may give him some closure. 

13. The Tribunal will now outline the statutory provisions that are relevant to the current application. For ease of reference the key statutory terms have been emphasised in bold.

14. The Commonwealth is liable to pay a pension, by way of compensation, to a veteran who is incapacitated from a war-caused injury or disease. Section 13(1) of the VEA is the relevant section. It provides:

    (1)Where:

    …

    (b)a veteran is incapacitated from a war-caused injury or a war-caused disease;

    the Commonwealth is, subject to this Act, liable to pay:

    …

    (d)in the case of the incapacity of the veteran—pension by way of compensation to the veteran;

    in accordance with this Act.

15. A “veteran” is defined by s 5C of the VEA to include “a person … who is, because of section 7, taken to have rendered eligible war service”.

16. Section 9 of the VEA defines when an injury or disease contracted by a veteran will be “war-caused”. Relevantly, s 9(1)(b) provides in part that:

    (1)… an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

    …

    (b)     the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …

17. The relevant part of s 7(1)(a) of the VEA, which defines “[e]ligible war service”, states:

    (1)  Subject to subsection (2), for the purposes of this Act:

    (a)     a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; …

18. For “operational service post world war 2 in operational areas”, s 6C(1) of the VEA relevantly provides:

    (1)Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:

    (a)a member who was allotted for duty in that area; or

    (b)a member of a unit of the Defence Force that was allotted for duty in that area;

    is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.

19. Section 5B(2) of the VEA contains a detailed definition of “allotted for duty”. Relevantly, to be allotted for duty in an operational area, a person needs to be allotted for duty in the area “by written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act”. This is the crux of the problem with Mr Steven’s current application to the Tribunal.

20. Specifically, there is no written instrument, or other written record confirming Mr Stevens allotment for duty. Indeed, as referenced above at paragraph [8], the Australian Army stated that there were no records showing that Mr Stevens served overseas.

21. In addition, the definition of “allotted for duty” in s 5B refers to geographic operational areas specified in items in column 1 of schedule 2 of the VEA. Although item 4 of column 1 referred to “Vietnam (Southern Zone)” for the period “from and including 31 July 1962 to and including 11 January 1973”, it does not include Laos. Item 12 refers to Laos, but for the period “from and including 20 October 1991 to and including 7 October 1993”.  

22. The effect of these provisions of the VEA is that, as there is no evidence that Mr Stevens was allotted for duty in an operational area (ss 5B(2) and 6C(1)), he does not meet the definition of having rendered eligible war service (s 7(1)(a)). This in turn means that Mr Stevens’ posttraumatic stress disorder cannot be taken to be war-caused because there is no evidence that it arose out of, or was attributable to, any eligible war service that he rendered (s 9(1)(b)). This means that he is not eligible for a Pension under s 13(1).

    CONCLUSION

23. The Tribunal understands that Mr Stevens will be disappointed with this decision, but as explained above, the Tribunal can only determine the pension application before it. With respect to that application, Mr Stevens is not eligible for a Pension due to the absence of the written instrument allotting him for duty. Additionally, Laos was not one of the specified operational areas at that time.

24. Mr Stevens may be able to seek some assistance and support from his local Returned and Services League (RSL) or the Australian Special Air Service Association (ASASA) which provides advice and assistance to past members of the Special Air Services.

    DECISION

25. For the reasons outlined above, the Reviewable Decision, being the decision of the VRB dated 3 September 2019, is affirmed.

I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

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Associate

Dated: 20 January 2021

Date of hearing:	15 January 2021
Counsel for the Applicant:	Self-represented
Counsel for the Respondent:	Ms S Anicic
Solicitors for the Respondent:	The Australian Government Solicitor