Strawhorn and Repatriation Commission

[2007] AATA 1793

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1793

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200601157

VETERANS'       APPEALS       DIVISION		)
Re		LEONARD ANDREW STRAWHORN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Brigadier C. Ermert, Member

Date21 September 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Conrad Ermert

Member

VETERANS’ AFFAIRS – Gold Card ‑ qualifying service – during a period of hostilities – operational flights over Balikpapan – dumping of ammunition – whether operations against the enemy – whether incurred danger from hostile forces of the enemy – service after 29 October 1945 – dumping of ammunition – whether eligible for award of medals or clasps ‑ reviewable decision affirmed

Veterans’ Entitlements Act 1986

Administrative Appeals Tribunal Act 1975

Repatriation Commission v Thompson (1988) 44 FCR 20

REASONS FOR DECISION

21 September 2007 Brigadier C. Ermert, Member

INTRODUCTION

1.      Mr Leonard Andrew Strawhorn, the applicant, served with the Royal Australian Air Force (RAAF) from 21 January 1943 to 30 January 1946.  He underwent training as a flight rigger prior to being posted to operational base units and aircraft repair depots at, among other places, Gorrie and Darwin in the Northern Territory.  He was discharged on 30 January 1946.

2.      Mr Strawhorn states he acted as an emergency Air Gunner in a B-24 Liberator bomber of 24 Squadron RAAF in a flight over Balikpapan.  He states further that while serving in Darwin in the latter stage of the war, he was detailed to dump live ammunition in the ocean and that he had been warned to look out for enemy mines.

3.      On 24 March 2006 Mr Strawhorn lodged an application for a Gold Card.  A delegate of the Repatriation Commission found that Mr Strawhorn had not rendered qualifying service within the meaning of the Veterans’ Entitlement Act 1986 (the Act).  On 28 August 2006 a senior delegate of the Repatriation Commission affirmed the decision.  This application is a review of the decision of 28 August.

THE HEARING

4. At the hearing Mr Strawhorn represented himself. The respondent was represented by Mr Gerry Purcell of counsel. Both parties participated in the hearing via a telephone link. I had before me the documents provided by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents).  I also had before me a historical research report compiled by Mr Robert Piper from Military Aviation Research Services and I subsequently received a copy of a handwritten letter dated 4 May 2007, from Mr Strawhorn to Mr Robert Douglass of the Advocacy Section of the Department of Veterans’ Affairs (the Department).  

THE ISSUES

5.      Section 85(4A) of the Act sets out the criteria for eligibility for treatment benefits, that is for the receipt of a Gold Card.  In this case the only criterion in dispute is that described in section 85(4A)(b) which requires a person to have rendered qualifying service.  The requirements for qualifying service are contained in section 7A of the Act, which relevantly provides:

(i)… a person has rendered qualifying service:

(a)if the person has, as a member of the Defence Force;

(i)rendered service, during a period of hostilities specified in paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1), at sea, in the field or in the air in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when the person incurred danger from hostile forces of the enemy in that area or on that aircraft or ship; or

(ii)rendered service after 29 October 1945 in respect of which the person has been awarded, or has become eligible to be awarded, the Naval General Service Medal or the General Service Medal (Army and Royal Air Force) with the Minesweeping 1945-51 Clasp, the Bomb-Mine Clearance 1945-53 Clasp, the Bomb and Mine Clearance 1945-49 Clasp or the Bomb and Mine Clearance 1945-56 Clasp…

6.      The period of hostilities is defined in section 5B of the Act and includes World War 2 from its commencement on 3 September 1939 to 29 October 1945.  There is no dispute that Mr Strawhorn served in the Defence Force during this period.  For Mr Strawhorn’s service during the period of hostilities the issues to be determined are whether Mr Strawhorn:

·           rendered service in operations against the enemy, and

·           incurred danger from hostile forces of the enemy.

Mr Strawhorn also served after the period of hostilities.  For this period of his service the issue is whether he has been awarded or is eligible for one of the specified medals or clasps.

Did Mr Strawhorn render Service in Operations Against the Enemy?

7.      In his letter to Mr Douglass at the Repatriation Commission dated 4  May 2007, Mr Strawhorn gave details of the operational flight that he states he made in a B-24 Liberator bomber of 24 Squadron RAAF.  He wrote:

… I know it seemed a long way over and back and I can’t remember how long we were over enemy territory.  We just flew low back and forwards hedge hopping over the Japs to draw their fire so our boys new (sic) where their guns were.

It was over Balikpapan that is all I know and that’s when we used our guns.  They were only single barrel machine guns using .5 (unclear) ammo.  They were side guns one on each side.  We never had bombs because we were only supposed to strafe the Japs and as I remember we only fired short bursts as we came low over them.  Myself and another chap volunteered to go as emergency gunners as a full crew on the Libs did not include side gunners ….  We did not have any training.  We just new (sic) how to use a gun and the sights on the newer guns which we had were very simple.  As a Flight Rigger I had a fair idea how to clear a jam.  It was only using a bit of Common Sense.

8.      In his oral evidence Mr Strawhorn said:

…Well all I can tell you is that I done those two shifts as an emergency gunner…They just said, “Does anyone want to go emergency gunner?  We’ve got a couple of places, and yes, that’s all there was to it. (Transcript page 3). 

…We just jumped in this for the thrill of it actually (Transcript page 12).

9.      Mr Strawhorn remembers someone saying that the flight was over Balikpapan but can not recall an approximate date for the flight.  In answer to questions from Mr Purcell, Mr Strawhorn said that he had only limited weapons training with a rifle and no training with or opportunities to use the weapons on board any of the aircraft.  Mr Strawhorn said that he flew to Darwin a couple of times to get the mail and once or twice he went on a test flight on an aircraft after repairs.  Mr Strawhorn did not doubt the lack of a record of members of his unit flying operationally on B24 Liberator bombers as they were probably not supposed to be there.

10.     I also noted Mr Strawhorn’s statements …I don’t doubt there’s no record there anyway, in one way, because probably we weren’t supposed to (Transcript page 13) and …there were lots of things that nobody knew what happened, and I don’t know if they weren’t reported or were reported (Transcript page 16).  He denied Mr Purcell’s suggestion that the flights were a joy ride.

11.     Drawing on the report by Mr Piper, Mr Purcell put to Mr Strawhorn that a B-24 Liberator bomber was a large four-engine bomber not designed for low-level flying and strafing; and that it would not be usual for a Liberator to be risked as a target to draw enemy fire.  Mr Strawhorn’s response was …That’s all I know, that we were supposed to, yes, draw the fire of the enemy (Transcript page 15).

12.     In his submissions in regard to the claimed operational flights in a B-24 Liberator bomber Mr Purcell contended that the Tribunal could not be satisfied that Mr Strawhorn undertook the flights as described.  He submitted that Mr Strawhorn’s recollection of the details was not good; and, based on the Mr Piper’s report, it was highly unlikely that an unskilled and untrained fitter would be put in a position of having to operate a gun which required specialist training and experience.  Drawing further upon Mr Piper’s report, Mr Purcell also questioned the reasonable possibility of such a large aircraft being used for strafing and hedge-hopping.  He submitted that the Tribunal could not be reasonably satisfied that the applicant was, in fact, deployed as a door gunner on combat missions.

13.     In considering this issue I noted the contentions put by Mr Piper in his report.  Mr Piper said the:

…B-24 Liberator was a large four-engined bomber, not designed for low level flying and strafing nor could it have been risked as a target to draw enemy fire … gunnery training and skills of a high order were required in the B-24 Liberator. 

Mr Piper concluded:

…There is no record of the veteran or any other ground staff member flying on operational missions as air gunners with the RAAF or 24 Squadron in the latter stages World War II.

14.     Thus, I am left with the unsupported evidence of Mr Strawhorn that he did undertake two operational flights as he described.  If those flights did in fact occur, then it would be conceivable to conclude that the flights were operations against the enemy.  However, there is no other evidence to point to the flights taking place as described, that the flights were over the enemy in Balikpapan or that they occurred during the period of hostilities. 

Did Mr Strawhorn Incur Danger from Hostile Forces of the Enemy?

15.     Mr Strawhorn was asked whether he had ever had anybody firing at him.  He said:

… well, I don’t know whether they were shooting at us. I suppose they were, but … Well they didn’t hit us anyway. Put it that way. … Well I guess we were aware of it, yes … when we were flying low enough … look its that far away I can’t remember the whole bloody minor details of it (Transcript page 18). 

In answer to a question I put to Mr Strawhorn, he agreed that he may have had an impression of being shot at which may have been an assumption.

16.     With respect to the meaning of incurred danger, Mr Purcell referred to judgement of the Full Federal Court in the case of Repatriation Commission v Thompson (1988) 44 FCR 20. In that case it was said:

A serviceman incurs danger when he encounters danger, is in danger, or is endangered.  He incurs danger from hostile forces when he is at risk or in peril of harm from hostile forces.  A serviceman does not incur danger by merely perceiving or fearing that he may be in danger.  The words “incurred danger” do not encompass a situation where there is a mere liability to danger; that is to say that there is a mere risk of danger.  Danger is not incurred unless the serviceman is exposed, at risk of, or in peril of harm or injury.

17.     In his submissions on this issue Mr Purcell contended that, even if the flight had taken place as described, there was no objective evidence of the aircraft coming under attack. 

18.     As with the previous issue I have no other evidence before me that Mr Strawhorn actually incurred danger from hostile forces of the enemy.  If the flight took place as described, it is quite conceivable that enemy fire could have been directed at the aircraft in which Mr Strawhorn says he was flying.  If the mission had been designed to draw enemy fire as Mr Strawhorn states, then it is quite possible that enemy fire could have been directed at the aircraft.  It is also conceivable that Mr Strawhorn would not have been aware of such fire.  The difficulty is that there is no evidence of such fire, nor indeed is there evidence of a B-24 Liberator ever being used in such a role.

Consideration of the Evidence regarding Operational Flights

19.     I have the unsupported evidence of Mr Strawhorn that he undertook two operational flights in B-24 Liberator bombers in low-level strafing missions over Balikpapan in Borneo designed to draw enemy fire.  I have also a report from an aviation historian that RAAF ground crew would not be deployed as air gunners on operational missions and that B-24 Liberators would not be risked for low-level missions because of their vulnerability to small arms fire.  I find Mr Strawhorn’s description of events to be coherent with reasonable clarity of memory for some details.  This leads to a possibility of such events having taken place.  However, without some supporting evidence they must remain no more than a possibility.

20.     Without such evidence I cannot be reasonably satisfied that the flights as described by Mr Strawhorn did in fact take place.  Accordingly, I can not be satisfied that Mr Strawhorn rendered service during a period of hostilities in aerial operations against the enemy at a time when he incurred danger from hostile forces of the enemy.  Therefore, I must find that the provisions of subsection 7A(1)(a)(i) of the Act for qualifying service have not been satisfied in regard to his claims of operational flights over Balikpapan.

Dumping of Ammunition off Darwin

21.     In his letter to the Department dated 20 September 2006 (T1) Mr Strawhorn stated …When the war ended we were detailed to dump live ammunition in the ocean some where off Darwin and the Captain told us to look out for Mines as they were everywhere.  Mr Strawhorn confirmed the above statement in his oral evidence. He stated that the ship went out despite the warning about mines and suffered no damage.  He gave no evidence of the dates during which this dumping took place.

22.     There are two time periods to consider, one during the period of hostilities and one after the end of hostilities.  To meet the requirements of qualifying service during the period of hostilities Mr Strawhorn would have had to render service in operations against the enemy when he incurred danger from hostile forces of the enemy.  Mr Strawhorn’s record of service contained in Mr Piper’s report shows that he was posted to 12 Aircraft Repair Depot in Darwin from 2 September 1945.  While this is within the period of hostilities, it is clear from Mr Strawhorn’s evidence that the dumping of ammunition was not part of operations against the enemy.  Nor is there any evidence that Mr Strawhorn actually incurred danger from hostile forces of the enemy, as defined in the Thompson judgement.  As a consequence, I cannot find the Mr Strawhorn’s service in regard to the dumping of ammunition meets the provisions of qualifying service contained in subsection 7A(1)(a)(i) of the Act.

23.     The other period of service to be considered is after the period of hostilities.  The provisions of subsection 7A(1)(a)(ii) of the Act require that for Mr Strawhorn to have rendered qualifying service after 29 October 1945, he must have been awarded or be eligible to be awarded one of a number of specified medals or clasps.  There is no evidence, and Mr Strawhorn makes no claims, that he has been awarded or is eligible for any of those medals or clasps.  As a consequence, I find that Mr Strawhorn does not meet the provisions for qualifying service in respect to his service after 29 October 1945.

CONCLUSION

24.     While Mr Strawhorn’s account of operational flights over Balikpapan raise the possibility of such flights occurring, without some additional evidence pointing towards such flights they must remain no more than a possibility.  If he were able, in future, to find some evidence, then the claim could be resubmitted for reconsideration.  However, without such evidence I cannot find that Mr Strawhorn actually rendered service during a period of hostilities in operations against the enemy at a time when he incurred danger from hostile forces of the enemy. 

25.     In regard to Mr Strawhorn’s involvement in the dumping of ammunition off the coast of Darwin, I have found that during the period of hostilities he was not engaged in operations against the enemy, and for his activities after the war, he was not awarded the prescribed medals or clasps.

26.     As a result I find that Mr Strawhorn has not rendered qualifying service as provided for in section 7A of the Act and therefore is not entitled to the receipt of treatment benefits derived from the issue of a Gold Card.

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 herein of

Brigadier C. Ermert, Member

(sgd)     Olympia Sarrinikolaou

Clerk

Date of Hearing:  17 August 2007

Date of Decision:  21 September 2007
Advocate for the applicant           Self‑represented
Advocate for the respondent:       Mr G. Purcell, Department of Veterans’ Affairs