Gibson and Repatriation Commission [2000] AATA 229 (23 March 2000)

Last Updated: 24 March 2000

DECISION AND REASONS FOR DECISION [2000] AATA 229

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/337

VETERANS' APPEALS DIVISION )

Re James Robert GIBSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr A Argent, Member

Date 23 March 2000

Place Melbourne

Decision The decision of the Repatriation Commission is affirmed.

(Sgnd) A Argent

Member

CATCHWORDS

VETERANS' AFFAIRS - qualifying service -- whether incurred danger -- eligibility for Gold Card - decision affirmed

Veterans' Entitlements Act 1986 - section 7A, ss 85(4A)

Repatriation Commission v Walter Harold Thompson (1988) 82 ALR 352

REASONS FOR DECISION

23 March 2000 Mr A Argent, Member

Background

1. This is an appeal by Mr James Robert Gibson ("the veteran") against a decision of a senior delegate of the Repatriation Commission ("the Commission") dated 7 January 1999.

2. That decision affirmed a previous decision of the Commission dated 17 September 1998 which determined the veteran had not rendered qualifying service during the period of hostilities of World War Two and thus was not entitled to a Gold Card.

3. The period of hostilities of World War Two is from 3 September 1939 to 29 October 1945.

4. Qualifying service is defined at section 7A of the Veterans' entitlements Act 1986 ("the Act"). Part of this section reads:

"Qualifying service

7A.(1) ... 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;'

5. Section 85(4A) of the Act specifies that a veteran is eligible to be provided with treatment, that is, entitled to a Gold Card, if the veteran is aged 70 or over and has rendered qualifying service during World War Two.

Issue

6. The issue before the Tribunal is whether the veteran rendered qualifying service during World War Two.

The Evidence

7. The Tribunal had before it:

(a) The documents ("the T documents") lodged by the Commission pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Included in these documents is material supplied by the veteran concerning his World War Two service.

(b) Two reports, dated 14 June 1999 and 14 July 1999, from Mr R Piper, an aviation historian.

8. The veteran presented his own case and the Commission was represented by Mr R Douglass, a Commission advocate.

9. The veteran was born on 9 March 1925. He enlisted in the RAAF on 12 March 1943 and was mustered as a messman, then as a cook. He served in Victoria and NSW for a little more than a year and then in the Northern Territory from 20 April 1944 until early December 1945 and was discharged on 28 May 1946.

10. The veteran stated he incurred danger during two bombing raids when he was based in Batchelor airfield. The first of these was in about May 1944 when, he said, at 1205 hours 6-8 Zeros dropped five or six bombs and damaged the runway. The next was in about June 1944, at 2200 hours when a float plane flew over Batchelor. No bombs were dropped and there was no hostile action. He said this aircraft flashed its lights as it flew over. A letter from Mr L Wilkie, of Ballarat, dated 16 March 1999, in the T documents states on 11 June 1944 "there was an air raid alert at Batchelor and that a bomb fell on Pell airstrip . . . not very far from Batchelor."

11. The veteran also gave evidence that he served in 18 (NEI) Squadron, at Batchelor airfield, beginning on 27 April 1944. This was a RAAF squadron flying B25's, the twin-engine Mitchell bomber. The aircrew were Dutch from the Netherlands East Indies except for the tail gunners who were from the RAAF. The ground staff were predominantly RAAF with a few Dutch and Indonesians of the Royal Netherlands Air Force.

12. The veteran went on to state that he was approached by a Dutch officer of 18 Squadron who asked him to train as a tail gunner. This was about two months after he joined the Squadron as a cook. He stated he was then trained in the Squadron's armoury section for about two months to be an air gunner and, following this training, flew 8 sorties as a tail gunner. These sorties, all from Batchelor, ranged from Ambon to the north of Darwin to Timor to the west. He said that on his last bombing mission, on about 10 September 1944, the canopy of the aircraft was shattered by enemy anti-aircraft fire and this caused a metal splinter to lodge in his hand. Dutch medical personnel treated the subsequent swelling unsuccessfully and he was admitted to the RAAF's 1^st Medical Receiving Station (1 MRS) on 16 September 1944.

13. On cross-examination the veteran said his training in 18 (NEI) Squadron as an air gunner included aircraft recognition and instruction on the 0.5 inch Browning machine gun. He did no air-to-air gunnery or deflection shooting. He joined the Sergeants' mess when he was undergoing training. He said he was presented with the RAAF air gunner badge when he finished his in-squadron training. He was not "crewed-up" but flew with different crews most of the time. He said he first fired the Brownings on operations.

14. He said he received 2/6 per day aircrew pay, which was paid in cash by the Dutch. He could not recall having a paybook or even attending a pay parade during his RAAF service and cannot remember how he was paid. He said he was not given his paybook(s) on discharge and would not know if aircrew pay was entered in it/them or not.

15. On further questioning, he could not recall the names of the Dutch pilots of the aircraft in which he flew and he could not remember the names of the other RAAF sergeant tail gunners who were in the same sergeants' mess as he. He remembered them as "Dave" or "Bill", although he said he was in the mess with them for three to four months.

16. He also said he kept no log book, in which to record training and operational flights.

17. The veteran produced letters in the T documents from a Javanese who was also a cook in 18 (NEI) Squadron. The veteran visited him in Java in 1998, about four months before he died. He left no evidence to say Mr Gibson had trained and flown as an air gunner in 18 (NEI) Squadron.

18. There was no evidence produced by the veteran from any former member of 18 (NEI) Squadron to say the veteran flew on operational sorties.

19. The veteran said there were errors in his Record of Service. He said he did not serve in Headquarters North Western Area beginning 12 February 1945 or North Western Telecommunications Unit beginning 17 September 1945 and he was not admitted to 1 MRS on 16 July 1945.

20. In his evidence Mr Piper, who has been connected with 18 (NEI) Squadron Association and its members for more than 15 years and who has regularly contributed to their Newsletter, said:

(a) There is no record of the veteran serving as an air gunner with 18 Squadron.

(b) 18 Squadron records make no mention of his name or he being a crew member.

(c) There are frequent mentions of crews of aircraft, all with the rank of sergeant and above.

(d) Ex-members and historians of 18 Squadron cannot remember the veteran (or any other ground staff) serving as air crew and going on operations.

(e) There is no record of the veteran receiving an injury to his hand during operations as a tail gunner in 18 Squadron.

(f) RAAF air gunners were competitively selected and attended a three month course at a Bombing and Air Gunnery School. If successful, they were promoted to sergeant and awarded the Air Gunner Badge.

(g) Air gunners considered themselves an elite group and he had difficulty in comprehending they would have accepted other lesser ranks of the squadron to join them after an unofficial training period in the Armoury Section which could not have included air gunnery skills.

(h) He found it most difficult to understand how aircrews, particularly aircraft captains, would have an inadequately trained man occupying such a vital position as a tail gunner.

(i) At the period under review, August/September 1944, there was a surplus of aircrew, including air gunners, in the RAAF. It is difficult to accept the Squadron would employ an untrained man as air gunner when there was a pool of trained non-commissioned officers (NCOs) from which to draw.

(j) 18 (NEI) Squadron RAAF had an association and produces newsletters.

21. Turning to the matter of Japanese bombing attacks claimed by the veteran, Mr Piper said:

(a) The last recorded Japanese air raid in the Northern Territory occurred on 12 November 1943. There are no records of bombing in the Batchelor area in May or June 1944. For example, the unit diary of 53 Operational Base Unit, RAAF, which was located at Batchelor, makes no record of any enemy bombing attacks.

(b) Concerning Mr Wilkie's letter at Folio 7 in the T documents, the last raid on Pell Airstrip was on 21 August 1943. There is no record of any enemy aircraft activity, including a raid, on Pell in 1944 or 1945.

findings

22. The standard of proof in this case is on the balance of probabilities, that is, on the balance of probabilities, did the veteran incur danger from the hostile forces of the enemy during his service in the RAAF in the Northern Territory from 20 April 1944 to 10 December 1945?

23. "Incurred danger" is defined by the Full Court of the Federal Court in Repatriation Commission v Thompson (1988) 82 ALR 352. Their Honours said:

"The words "incurred danger" provide an objective, not a subjective, test. 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."

24. The Tribunal finds the veteran did not incur danger from enemy aircraft in May and June 1944 as records show the last Japanese bombing raid was on 12 November 1943, six months before the events described by the veteran.

25. The veteran may be confusing the Japanese Zeros he spoke about with those enemy aircraft which followed RAAF Beaufighters back to Millingimbi on 10 May 1943, a year before. Millingimbi is 245 nautical miles (450km) ENE of Batchelor. The veteran did not serve at Millingimbi.

26. The veteran may also be confusing what he said was a floatplane over Batchelor at night with the incident of a "Dinah" Japanese photo reconnaissance aircraft which was shot down later on 12 June 1944 near Darwin. Photo reconnaissance aircraft did not carry bombs and, in any event, no bombs were dropped at Batchelor on that particular date.

27. The veteran, therefore, has not rendered qualifying service under this claim.

28. Turning to the veteran's other claim that he flew eight operational sorties as a tail gunner in 18 (NEI) Squadron during the months about August - September 1944, the Tribunal:

(a) Notes that, while the Squadron's Report of Operations lists aircraft and all aircrew (i.e. Captain, 2^nd pilot, bombardier, w/t operator, top turret gunner and tail gunner) the veteran's name is never listed. The Tribunal further notes that supernumerary crew is also listed but, again, the veteran's name does not appear.

(b) Has difficulty in accepting the Squadron would take, on operational flights, an important crewman who had not undergone the authorised flight training of an air gunner.

(c) Recognises all aircrew maintained official log books in which they detailed all training and operational flying and which were signed as correct by a more senior officer at regular intervals. The veteran could not produce such an important and personal document as this.

(d) Is aware all aircrew received flying pay and this was credited in their paybooks. Again, the veteran could not produce a paybook to verify his claim.

(e) Has difficulty in accepting the Dutch paid him 2/6 per day flight pay in cash because, amongst other things, 18 (NEI) Squadron was a RAAF Squadron and this procedure does not accord with RAAF practice.

(f) Does not accept the veteran, as an LAC, was a member of the Squadron's Sergeants' Mess during his alleged training and operational training, as such is against all rules, traditions and ethos of the armed services.

(g) Can not understand how the veteran can not recall the names of other RAAF tail gunners if, as he alleges, he spent at least three to four months in the Sergeants' Mess of a relatively small unit and was engaged in the same memorable activities as other NCO aircrew.

(h) Fails to understand why the veteran did not mention to the RAAF Medical Officer that the splinter in his hand, as he alleges, was as a result of the aircraft's canopy being hit by enemy anti-aircraft fire. This incident would have been a big event in the life of an air gunner and the RAAF Medical Officer at 1 MRS would almost certainly have recorded it on 16 September 1944 in the form at Folio 58 of the T documents.

(i) Notes the veteran failed to produce any evidence from the Squadron's Association or from his Javanese friend to support his contention he was an air gunner who flew on a number of operational flights.

29. Following from the nine points raised in the above paragraph, the Tribunal finds, in the balance of probabilities, the veteran did not participate in operational flights as an aircrew member of 18 (NEI) Squadron RAAF.

30. The veteran therefore has not rendered qualifying service and, consequently, is not entitled to a Gold Card.

31. The veteran mentioned some errors in his RAAF records. (See paragraph 19). However, they have no bearing on his claims for qualifying service.

decision

32. The decision of the Repatriation Commission is affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Argent, Member

Signed: Grace Carney

Personal Assistant to Senior Member Dwyer

Date/s of Hearing 3 March 2000

Date of Decision 23 March 2000

Counsel for the Applicant Nil

Solicitor for the Applicant Nil - Self Represented

Counsel for the Respondent Nil

Solicitor for the Respondent Nil

Departmental Advocate Mr R Douglass