Tiernan and Repatriation Commission [2000] AATA 589 (17 July 2000)

Last Updated: 21 July 2000

DECISION AND REASONS FOR DECISION [2000] AATA 589

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/1111

VETERANS' APPEALS DIVISION )

Re RODERICK THOMAS HAMILTON TIERNAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr A. Argent, Member

Date 17 July 2000

Place Melbourne

Decision The Tribunal sets aside the decision under review and decides the veteran rendered qualifying service and is therefore eligible to be provided with treatment, that is, entitled to a Gold Card.

..........(Sgd) A. Argent..........

Member

CATCHWORDS

VETERANS' AFFAIRS - Gold Card - whether qualifying service - whether incurred danger from hostile forces

Veterans' Entitlements Act 1986 s. 7A

Repatriation Commission v Thompson (1988) 82 ALR 352

Marsh and Repatriation Commission (1986) 4 AAR 227

REASONS FOR DECISION

17 July 2000 Mr A. Argent, Member

Background

1. This is an appeal by Mr Roderick Thomas Hamilton Tiernan ("the veteran") against a decision of a senior delegate of the Repatriation Commission ("the Commission") dated 12 August 1999.

2. That decision affirmed a previous decision of the Commission dated 8 July 1999 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:

"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 and specifically whether he "incurred danger from hostile forces of the enemy" during his service in Okinawa with 1^st Prisoner of War Contact and Enquiry Unit in early September 1945.

The Evidence

7. The Tribunal had before it the documents ("the T documents") lodged by the Commission pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Included in these documents are:

(a) Material given by the veteran concerning his service in 1^st Prisoner of War Contact and Enquiry Unit;

(b) An excerpt from the History of United States Naval Operations in World War II, Volume XIV: Victory in the Pacific 1945 by S. E. Morrison.

8. The veteran was represented by Ms E. Cooke, of counsel, and the respondent was represented by Mr R. Douglass, a Commission advocate.

9. The veteran was born on 29 June 1916. He was taken on strength of the Citizen Military Forces on 13 November 1940, transferred to the AIF on 14 August 1942 and served in coastal artillery on the Australian mainland until 7 August 1945. From 8 August 1945 until 29 November 1945 he was a Contact Officer in 1^st Prisoner of War Contact and Enquiry Unit.

10. The veteran's evidence is that during his service with this unit he emplaned at Brisbane on 16 August 1945, arrived at Morotai the next day and Manila on 18 August 1945. From Manila he travelled to Okinawa where he was attached to 7^th US Army Division for about two weeks and then he went to Korea. His task was to make contact with Australian prisoners of war held by the Japanese in camps in Korea.

11. The veteran states he incurred danger during his two weeks or so in Okinawa in early September 1945. The incidences occurred when he was quartered with the US Army's 7^th Division and were, as given by the veteran:

"(a) During this period, a Japanese soldier ran through the camp in which I was situated, throwing hand grenades into the tents. Some of these did not explode. The tent I shared was one of those. Grenades exploded in other nearby tents, killing and maiming the occupants.

(b) Shortly after the incident described above, a further incident occurred. The tent which I shared was at the edge of a gully and on a particular night I was washing in a basin at the side of the tent. A burst of automatic gun-fire commenced. I took cover immediately and a hail of bullets went over my head and made a line of holes in the tent behind me. I was later advised by an American Officer that a Japanese soldier was responsible."

12. In his oral evidence the veteran gave further details of these events. He said he did not witness the grenade incident which happened in the early morning but was asleep and was awakened by the commotion. He further said the Americans did not practice grenade throwing during his sojourn on Okinawa. Concerning the small arms fire incident, he said this happened at dusk and he was told later the fire came from a US weapon set off by a trip wire. He believes Japanese soldier(s) tripped the wire. He said that during his stay on Okinawa in his area there was no celebratory firing of small arms or other weapons to mark the formal surrender signed on 2 September 1945.

13. Dr J. Grey, an historian, gave evidence for the Commission. He said the Japanese accepted the Allied terms of surrender on 15 August 1945 and the formal surrender occurred on board the USS Missouri in Tokyo Bay on 2 September 1945. There were no local surrenders before 2 September 1945. He went on to say that while the 7^th Division's records had been "weeded", those of the 10^th US Army (of which the 7^th Division was a part) were comprehensive. He believed the grenade incident which, the veteran said, resulted in some deaths and wounds would be recorded but the other incident - that of small arms fire - may not have been reported because there were no casualties.

14. Dr Grey said in his search of US Army records he did not find any instances of hostile actions on Okinawa after 15 August 1945. He was aware there were Japanese on Okinawa who had not surrendered to the Americans at the time when the veteran was there in early September 1945.

Findings

15. 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 when, in early September 1945, on Okinawa, he states:

(a) A Japanese soldier ran through the camp he was in and threw grenades, some of which caused casualties to US servicemen; and

(b) A burst of small arms fire passed over his head and struck a tent behind him.

16. "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."

17. In reaching its findings, the Tribunal took into consideration the following:

(a) The passage of time - the veteran was on Okinawa almost 55 years ago - and the obvious difficulties of securing corroborative evidence;

(b) The lack of Australian records which is understandable given the smallness of the Contact and Enquiry teams, their dispersion over wide areas of Asia and that they were attached to Allied forces with no direct link to the Australian Army formations;

(c) The apparent lack of detailed records of the US Army's 7^th Division activities during early September 1945 when the veteran was attached to that formation in Okinawa and Korea;

(d) The formal surrender of the Japanese in the Ryukyus, which includes the island of Okinawa, was on 7 September 1945;

(e) The veteran's area of interest was Korea and to get there he was attached to the US Army's 7^th Division in Okinawa, the formation ordered to occupy Korea;

(f) The veteran gave a strong impression of being a reliable witness.

18. The Tribunal finds the veteran rendered service as a member of the Defence Force during the period of hostilities as he was in Okinawa (and Korea) before 29 October 1945.

19. The Tribunal also finds the veteran was engaged in military operations against the enemy as he was a member of a unit raised to locate and assist in the repatriation of Australian prisoners of war of the Japanese. The Tribunal was assisted in this finding by Marsh and Repatriation Commission (1986) 4 AAR 227 where it was held "...if any activities are reasonably incidental to any of the three named operations, then they will be covered by those terms". (The three named operations are "naval, military or aerial operations against the enemy".)

20. The Tribunal accepts the evidence of the veteran that the two incidences of the grenades and the small arms fire were of Japanese origin, because there was no concrete evidence to the contrary and more importantly, by the reliability of the veteran as a witness.

21. The Tribunal therefore finds, on the balance of probabilities, the veteran incurred danger from the hostile forces of the enemy during his service in Okinawa in early September 1945, at some date before 7 September 1945.

Decision

22. The Tribunal sets aside the decision under review and decides the veteran rendered qualifying service and is therefore eligible to be provided with treatment, that is, entitled to a Gold Card.

I certify that the twenty-two (22) preceding paragraphs are a true copy of the reasons for the decision herein of

Mr A. Argent, Member

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing 26 May 2000

Date of Decision 17 July 2000

Counsel for the Applicant Ms E. Cooke

Solicitor for the Applicant Wainwright Ryan

Solicitor for the Respondent Mr R. Douglass, Departmental advocate