McShane and Repatriation [2002] AATA 1349 (20 December 2002)

Last Updated: 5 February 2003

DECISION AND REASONS FOR DECISION [2002] AATA 1349

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2002/61

VETERANS' APPEALS DIVISION	)
	Re	JOHN BRUCE McSHANE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Brigadier R D F Lloyd, Member

Date 20 December 2002

Place Perth

Decision

The decision under review is affirmed.

.............(sgd R D F Lloyd)....................

Member

CATCHWORDS

VETERANS' AFFAIRS - Veterans' Entitlements - Qualifying Service Post World War 2 - ex RAAF - Defence Signals Directorate activity overseas - periods and locations of Service in relation to Schedule 2 of the Veterans' Entitlements Act - problems with accuracy of Service Records.

Veterans' Entitlements Act 1986 ss 5(B), 7(A), Schedule 2.

REASONS FOR DECISION

20 December 2002

Brigadier R D F Lloyd, Member

1. The applicant in this matter, Mr John B. McShane, is appealing the decision of a Senior Delegate of the Repatriation Commission of 12 December 2001. That decision affirmed an earlier determination by a Delegate of the Commission on 16 January 2001 that the applicant had not rendered Qualifying Service as defined in the Veterans Entitlements Act 1986 (the Act), for Service Pension purposes.

2. The hearing in the Administrative Appeals Tribunal (the Tribunal) was conducted over two days - 10 and 20 December 2002, the applicant appearing with his advocate, Mr S Hourn. The Repatriation Commission (the respondent) was represented by Mr C Ponnuthurai on day 1 of the hearing and in the resumed hearing, on 20 December 2002, by Mr G Follington. At that resumed hearing the Tribunal gave an oral decision with reasons. Subsequently, on 21 January 2003, the applicant requested a formal written statement of `Reasons for Decision' - which is now provided.

THE EVIDENCE

3. The Tribunal had before it the documents filed pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents). As well, the applicant's advocate handed up two documents which were taken into evidence as follows:

* Exhibit A1: Letter from Mr S. Hourn to the Administrative Appeals Tribunal Perth, dated 4 December 2002, covering:

(a) note from M. Collins to Mr McShane ("Jack") dated 31 October (2002?); and

(b) submission by M. Collins to the Committee for Review of Veterans Entitlements (including attachments) dated 8 April 2002 (unsigned).

* Exhibit A2: Statement of evidence by Mr McShane dated 10 December 2002.

No additional documentary evidence was provided by the respondent.

4. The applicant gave oral evidence at the hearing underlining important aspects of and expanding upon his written statement of evidence (exhibit A2). He was cross-examined by the respondent and answered a number of questions posed by the Tribunal. As a consequence, the Tribunal regards him as an honest and forthright witness, an opinion supported in the hearing by the respondent's representative. Mr McShane is particularly clear in his recollection of dates, locations and other aspects of his Service activities. This, the Tribunal notes, is readily understandable in view of the special type of activity with which the applicant was involved for all of his military service. This aspect is of particular relevance in the Tribunal's consideration of this matter, as referred to later in these Reasons. No other witnesses were called to give evidence by the applicant's advocate and none by the respondent.

5. The applicant served in the RAAF from 25 July 1955 to 24 July 1967. His mustering was telegraphist. According to his evidence relating to his service (exhibit A2) he states that after RAAF basic training at Richmond and training at the RAAF School of Radio, he was subsequently posted to 3 Telecommunications Unit (3TU). There he received training in radio interception and logging of radio morse activity originating from a variety of countries. He was then posted overseas. He states in exhibit A2 as follows:

"In April 1957 I was posted to 1 Bomber Squadron, Tengah, Detachment A, Labuan, North Borneo to relieve Corporal George Emery. The posting was B Grade and intended to be for a period of 12 to 15 months. Prior to leaving Australia, I was told that I would qualify for "war service".

I arrived in Singapore on Saturday 13th April 1957 with a Corporal Tim Crowley, and his group departed for RAAF Butterworth.. There was some delay with the RAAF aircraft that was due to leave for Labuan.. I arrived in Labuan on the 19th April 1957 [year amended from 2002 by the applicant at the hearing] and was allocated duties operating Radio Direction Finding equipment..."

6. The Labuan posting lasted only 4 to 6 weeks, according to the applicant, when operations there were closed down. He was given the choice of returning to Australia or to proceed to Hong Kong for 2 and a half years, which was an A Grade posting. He chose the latter, i.e. Hong Kong. He goes on to state in exhibit A2 as follows:

"I arrived at 367 Signals Unit RAF, Little Sai Wan, Hong Kong...on the 3rd of July 1957 where I was employed on intercept duties. A short time after arriving in Hong Kong, an RAAF Butterworth POR [Personal Occurrence Return] advised that I had been awarded the GSM (Malaya). I found out much later...that POR had been cancelled by a later POR." [The reason for this was not explained to the applicant. However, the Tribunal notes that in 1995 he was advised by a Department of Defence letter (T8 page 17) that he had been awarded the GSM with clasp Malaya for service "...with the RAAF on Labuan Island in support of counter-terrorist operations in Malaya between 8 March 1951 and 7 June 1957".]

7. The applicant states that he then volunteered to operate Radio Direction Finding equipment in October/November 1957 at Kong Wai, in the New Territories of Hong Kong. This was quite close to the border with China and he describes the primitive, difficult and dangerous conditions involved (exhibit A2). He then goes on to state as follows:

"I returned to Australia, leaving Hong Kong in the MV Changte on or about the 6^th of December 1959 and arrived in Sydney on or about the 22^nd December 1959...thence proceeded on leave..."

8. The applicant further states regarding his next overseas deployment that, again as a member of 3 TU and having newly married, he arrived in Singapore on or about 17 October 1960. He goes on in his evidence (exhibit A2) as follows:

"My duties in Singapore were carried out at an intercept station known as Chai Keng, or CK2, which came under control of GCHQ...The Australian Army was represented by members of 202 Sigs Squadron..and the RAAF were represented by members of 3 Telu [3TU] under the command of Flight Lieutenant L.R. Rigall..For a period of my service at CK2, my immediate superior was Mr Mac Maroney who was employed by DSD [Defence Signals Division/Directorate, a division of the Australian Department of Defence] One of my responsibilities during this time was to analyse and report on Viet Cong radio communication activity..During my service in Singapore I was sent to RAAF Butterworth to man point to point radio morse link with Ubon ..I was sent to operate the Butterworth end of the link for 2 weeks..."

9. With particular reference to DSD, by way of explanation, the applicant states in his evidence that DSD was the operational tasking authority throughout [of 3TU and including times when he was attached or posted for intercept and other associated duties to various units/detachments over the relevant periods]. This is supported and further amplified by Squadron Leader (retired) M. Collins in his submission at exhibit A1(b). The Tribunal itself is also fully conversant with the role played by DSD and those like the applicant employed by it over this period. The basis for this knowledge and expertise was appropriately explained to both parties during the hearing (transcript page 15 and 16).

10. Chronologically, the applicant's evidence then was that he was returned to Australia from his employment in Singapore in April 1963. This was on compassionate grounds because of the serious illness of his son, who subsequently died in hospital in Perth in October 1963. The applicant remained in RAAF employment in the same or similar DSD-type activity in Australia until discharge in July 1967, at the termination of his 12-year period of enlistment.

11. In summary therefore, the overseas service of relevance in this matter, according to the applicant's evidence, is summarised as follows.

(a) Singapore: 13 to 19 April 1957 (These dates are also supported by evidence in statements by I.D. McLean - T19, page 54 and A.B. Preston - T19, page 55).

(b) Labuan: 19 April to 3 July 1957.

(c) Hong Kong: 3 July to October/November 1957.

(d) Kong Wai (New Territories): October/November 1957 to December 1959.

(e) Singapore/Butterworth: 17 October (approx) 1960 to April 1963.

12. For the most part, the respondent relies on the documented Service Records contained in the T documents, at the same time acknowledging that these are contradictory and confusing. The Tribunal notes that there are three separate and different Records of Service covering the same period pertaining to the applicant provided by the Department of Defence. These are dated 21 March 1996 (T3 page 5 and 6), 3 April 1996 (T4, page 7 and 8) and a third version dated 19 February 2001 (T5, page 9). These appear, at least in part, to have resulted from requests to the Department of Defence by both the applicant (or his advocate) and the respondent.

13. The Tribunal is, to say the least of it, very concerned indeed about the obvious contradictions, errors and conflicting statements in these three important documents. In particular the Tribunal notes as follows.

(a) Whilst the first two records have the same unit/detachment and date detail, the one dated 21 March 1996 (T3 page 5 and 6) states as follows:

"The veteran was allotted for service in Malaya from 11.05.1957 to 31.05.1957 in accordance with the Veterans Entitlements Act 1986."

(b) Contradicting that statement, the Service Record dated 3 April 1996 (2 weeks later) states as follows:

"The veteran was not allotted for service in accordance with the Veterans Entitlements Act 1986." (emphasis added)

(c) This version also adds the qualification for the General Service Medal (Malaya) for service on Labuan Island, which is not mentioned on the 21 March 1996 Record of Service.

(d) The third Record of Service document dated 19 February 2001 (T5 page 9) is purported, together with the 3 April 1996 record, to be correct as per the applicant's Service file - according to the Department of Defence letter of 6 September 2001 (T21, page 71). This 19 February 2001 record provides further variations to the earlier Records of Service, including that of 3 April 1996, some of which on examination appear explainable but others are not. For example, an error such as stating that Labuan is in "PNG" (Papua New Guinea) seems inexcusable to the Tribunal and does not result in giving it or anyone else great confidence in the document's total accuracy.

(e) This third record (T5, page 9) includes a statement not included in either of the earlier records as follows:

"Base Squadron Butterworth was allotted for duty in Malaya and Singapore from 01 May 1958 to 31 July 1960 in accordance with Schedule 2, Item 3 of the VEA."

(f) The Tribunal notes in this regard that this Service Record shows the applicant served in Base Squadron Butterworth, Malaya, and located there from 30 May 1958, but then from 31 October 1959 he is shown as Base Squadron Butterworth, Detachment A, located Hong Kong.

(g) Furthermore, this February 2001 Record of Service has a further addition not evidenced before, stating as follows:

"Attachments: 367 Signals Unit (RAF) Singapore 01.06.1957-29.05.1958

367 Signals Unit (RAF) Singapore 30.05.1958-30.10.1958."

THE LAW AND RELATED FINDINGS BY THE TRIBUNAL.

14. The relevant section in the Act dealing with Qualifying Service is Section 7A and in relation to the applicant and this matter before the Tribunal, it is specifically Section 7A (1)(a)(iii). This states as follows in defining Qualifying Service:

"....Rendered service outside Australia in an area described in Column 1 of Schedule 2 during the period specified in Column 2 of that Schedule opposite to that description, as a member of a unit of the Defence Force that was allotted for duty, or as a person who was allotted for duty in that area; or..." 

15. The term "allotted for duty" as used in Section 7A is defined in Section 5B (2) of the Act. That section in part states as follows:

"A reference in this Act to a person, or a unit of the Defence Force, that was allotted for duty in an operational area is a reference:

(a) in the case of duty that was carried out in an operational area described in Item 1, 2, 3, 4, 5, 6, 7 or 8 of Schedule 2 (in Column 1) - to a person, or unit of the Defence Force, that is allotted for duty in the area (whether retrospectively or otherwise) by written instrument issued by the Defence Force for use..in determining a person's eligibility for entitlements under this Act; or

..."

The section goes on further to aspects that are not relevant to the applicant's situation, albeit they do refer to written instruments issued and signed by the Vice Chief of the Defence Force or the Minister for Defence for other areas.

16. The relevant item in Schedule 2 in this case essentially is Item 3. This describes the operational area in Column 1 as follows:

"The area comprising the territories of the countries then known as the Federation of Malaya and the Colony of Singapore, respectively."

In Column 2 the period prescribed in respect to Item 3, Column 1 is described as follows:

"The period from and including 1 September 1957 to and including 31 July 1960."

17. Considerable time was spent in the hearing concerning the initial deployment of the applicant overseas in mid-1957. The Service Records of the Department of Defence (T4, page 7 and T5, page 9) show him departing Australia on 10 May 1957, arriving Changi (Singapore) 11 May and on the same day arriving in Labuan (which the Tribunal emphasises again is not in PNG as stated by the Department of Defence document). The Tribunal notes at this point that Labuan is not in any case part of the area covered in Column 1 of the Schedule. The applicant's evidence (as outlined in paragraphs 5 to 11 of these Reasons) is that in fact he departed Australia on 12 April 1957 via Darwin, arrived in Singapore on 13 April, stayed there until 19 April, on which day he flew to and arrived at Labuan. This version is fully supported by separate evidence from two others who served with him at that time (T19, page 54 and 55). The basis for the difference in date of overseas deployment by some 4 weeks was further explained by the applicant in his oral evidence and is contained in exhibit A2. In the circumstances, taking into account the type of employment with which the applicant was involved and the state of the applicant's Service Records, the Tribunal accepts the probability that the applicant's version of this particular part of his service (April/May 1957) is likely to be the more correct one. It finds accordingly and does so despite the further contradictions noted in an earlier document provided by the applicant at T11, page 24 - indicating a March 1957 deployment.

18. Notwithstanding that however, none of the applicant's dates in Singapore (on route to Labuan) in 1957, whether they be April 1957 for 1 week or May 1957 for part of a day or even in March 1957, fit the requirement of the period prescribed in Item 3 of Schedule 2, which does not begin until 1 September 1957. The Tribunal is therefore relevantly satisfied that whether the unit to which he belonged at that time was appropriately "allotted for duty" or not, the applicant did not in 1957 render service during the prescribed period in the defined area as set out in Item 3 of Schedule 2 of the Act.

19. The next period of overseas service of relevance canvassed at the hearing and subsequently considered by the Tribunal was the applicant's service in 1958/59.

(a) The two Records of Service at T5, page 7 and 9 indicate the applicant as being a member of "Base Squadron" from 30 May 1958 and located at "Butterworth". Then in "Base Squadron Butterworth, Detachment A" from 31 October 1959 to December 1959 but stated to be located "Hong Kong".

(b) The 19 February 2001 Record of Service states that Base Squadron Butterworth (and from the evidence, this was the applicant's unit at the time), as referred to earlier in these Reasons at paragraph 13(e), was allotted for duty in accordance with Schedule 2, Item 3 of the Act from 1 May 1958 to 31 July 1960.

(c) However, this apparently authorised unit allotment for duty prescribed the area of operations to be Malaya and Singapore. Despite some indications to the contrary in the Records of Service, the applicant's own oral evidence adamantly stated in the hearing, together with his statement at exhibit A2, is that he himself was serving in Hong Kong and then Kong Wai (New Territories) from October 1957 to December 1959 and not in Malaya/Singapore. The Department of Defence contra-indications referred to in this respect include the notation in the 19 February 2001 Record of Service of the applicant being attached to 367 Signals Unit (RAF) from 1 June 1957 to 30 October 1958, with the location stated "Singapore". (para 13(g) of these Reasons refers).

(d) These apparent contradictions are unexplained, at least by the respondent or the Department of Defence. Despite this, the Tribunal is reasonably satisfied from the evidence, especially that given forthrightly by the applicant, that whilst his unit (Base Squadron Butterworth) appears to have been appropriately "allotted" in accordance with the Act and notwithstanding the 367 Sigs Squadron Singapore notations by the Department of Defence, he was not actually rendering service in the area prescribed in Schedule 2, Item 3 in the relevant period. This he must do in order to qualify under the provisions of the Act and the Tribunal, somewhat reluctantly under the circumstances, finds accordingly. It has no alternative but to do so despite the apparent contradictions of evidence referred to.

20. The applicant again served overseas in the same DSD-type capacity from 1960 to 1963. The Records of Service show his unit as "Base Squadron Butterworth, Detachment B" from 17 October 1960 until May 1963 and the location is given as "Seletar, Singapore."

(a) The applicant's evidence both oral and in exhibit A2 supports this information but adds that in that period he also worked for periods at Butterworth with activity related to Ubon (para 8 of these Reasons also refers).

(b) Again in this regard the Tribunal notes from the Service Records that his Butterworth unit is purported to have been allotted for duty in accordance with Schedule 2, Item 3 of the Act from 1 May 1958 to 31 July 1960. However, the undisputed date of the applicant's deployment to and the start of his rendering of service in the prescribed area of Singapore (and Malaya), according to the evidence, is 17 October 1960. This is after the end date of the period of 31 July 1960 prescribed in Schedule 2, Item 3, Column 2. The Tribunal is therefore relevantly satisfied from the evidence available that the applicant cannot qualify in relation to this 1960/63 overseas service either.

21. The Tribunal also examined the possibility of the applicant qualifying as a member of (attached/posted to) 1 Bomber Squadron under Item 2 of Schedule 2 when he was located in Singapore on the way to Labuan from 13 to 19 April 1957. Whilst the dates fit the Column 2 period in this respect - of 29 June 1950 to 31 August 1957, Singapore is not, however, included in Column 1 of Item 2 and therefore the Tribunal finds that he also cannot qualify in this manner.

22. Finally, as far as the applicant's service in Labuan and also in Hong Kong and including the New Territories is concerned, the Tribunal is satisfied that there is no evidence before it of appropriate unit or individual allotment for duty in terms of the Act related to Qualifying Service for those areas. The Tribunal therefore finds that he does not qualify in respect of this service either, albeit his activities at least in part appear to the Tribunal to have been somewhat akin to being "warlike".

ADDITIONAL TRIBUNAL COMMENT

23. Under the circumstances, the Tribunal feels impelled to take the somewhat unusual step of making some additional comments on this matter. The evidence presented to and made available to the Tribunal leaves a lot to be desired, although this could not be said, in the Tribunal's opinion, to apply to that provided by the applicant or his advocate. The applicant's documentary preparation was in fact commendable, under the circumstances of this rather unusual case.

24. The same cannot be said of the respondent's evidence, although its representative, Mr Ponnuthurai, presented the respondent's case and the facts and issues to be considered in a thorough manner. However, the main material which was relied upon was the three Records of Service documents in the T documents, compiled and provided by the Department of Defence. The Tribunal has already commented adversely regarding these documents in these Reasons (paras 12 and 13 refer). Nevertheless, the Tribunal's concern in this regard needs to be re-emphasised. The contradictions and errors (both apparent and real) contained in and between these three highly important and relevant documents can only be described, in the Tribunal's view, as showing a lack of attention to appropriate detail as well as an apparent inadequate knowledge or understanding by the authors of the special operations/deployments with which a member such as the applicant was involved in their overseas service.

25. Nevertheless, it is clear that not only the applicant, but the respondent also, tried to get a more appropriate and accurate result from the Department of Defence. Hence, the Tribunal presumes, the resultant three separate Records of Service issued by that Department. All of these vary in some degree, yet two are stated by the Department of Defence, in their letter of 6 September 2001 at T21 page 71, to represent the actual facts of service. The letter concluded with the statement: "This office is unable to comment further on this matter". This, together with the comment that: "Statements of service dated 3 April 1996 and 19 February 2001..are correct as per the information recorded on his [the applicant's] service file", leave the Tribunal with some apprehension that the Department of Defence is perhaps indicating that some further information may be available, but is not on file with or accessible by the author.

26. In the same regard, there is no sufficient evidence before the Tribunal, in its opinion, to enable it to be satisfied that the relevant recommendation resulting from the "Mohr Report" concerning personnel who were engaged in such special operations has been complied with in relation to the applicant. In this respect the Tribunal refers to the extract of that report at T19 page 66. The adequacy of the Department of Defence's investigation as it concerns Mr McShane would appear to the Tribunal to be in doubt. That is certainly the applicant's view and that of his advocate in this matter and understandably so.

27. It is not appropriate for the Tribunal to initiate any such further investigation of Mr McShane's very special type of overseas service and activity. However, as previously indicated, the Tribunal is very much aware from its own experience of what at the time was involved, the secrecy that prevailed, particularly in that period, and the sort of veiled/camouflaged posting and deployment notifications that in at least some instances were used because of this. The list of those briefed on DSD at that time was small indeed, this Tribunal member being one of them. It is the Tribunal's opinion that very thorough investigation of records, including those in classified archives and also those presumably maintained in DSD itself, is necessary in such cases to ensure that fairness is clearly apparent and subsequent justice appropriately achieved.

28. Additionally the Tribunal is also aware, as indicated by the respondent's representative in the hearing, that there is a further current review being undertaken in this field ("the Clarke Review"). There would appear to the Tribunal from the evidence available in this matter before it to be some justification in relation to the Clarke Review, or separately, in Mr McShane's case, for an investigation into the possibilities of an "individual allotment" or perhaps a further "unit allotment" to be made by the appropriate authority. Whether there is a need as a result for Schedule 2 of the Act to be amended is another matter.

29. These latter aspects were, and unusually so, discussed with the applicant and his advocate (with additional comment also from the respondent's representative) at the conclusion of day 1 of the hearing. However, it was made clear to both the applicant and his advocate in the process that any further action he/they may wish to take in future in this regard was for the applicant to initiate. The Tribunal emphasised, and emphasises again, that by providing these comments it is not in any respect intending to provide authoritative weight to the possible validity or potential success of any such applicant-initiated action or claim that may be made.

CONCLUSION

30. Despite the comments contained in paras 23 to 29 above and based on all the evidence before it and its resultant findings as summarised, the Tribunal is not able to be satisfied on the balance of probabilities that the applicant meets the requirements currently prescribed in the Act for him to be regarded as having rendered Qualifying Service as defined, for Service Pension purposes.

DECISION

31. Pursuant to Section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the Repatriation Commission decision under review of 12 December 2001.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier R D F Lloyd, Member

Signed: .......(sgd V Wong)...............................................

Associate

Date/s of Hearing 10, 20 December 2002

Date of Decision 20 December 2002

Counsel for the Applicant Mr S Hourn

Counsel for the Respondent Mr C Ponnuthurai