Ogilby and Repatriation Commission

[2000] AATA 73

DECISION AND REASONS FOR DECISION [2000] AATA 73

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No    V1999/1248

VETERANS'     APPEALS      DIVISION         )          

Re      ROBERT BRUCE FRANK OGILBY       

Applicant

And    REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal       Mr A. Argent, Member        

Date7 February 2000

PlaceMelbourne

Decision      The decision under review is affirmed.   

(Sgd.)  A. Argent
  Member
CATCHWORDS
VETERANS' AFFAIRS - qualifying service -- whether incurred danger -- eligibility for Gold Card health benefits
Veterans Entitlements  Act 1986     Section  7A, subsections 85(4A)

REASONS FOR DECISION

7 February 2000  Mr A. Argent, Member          

Background

1. This is an application by Mr Robert Bruce Frank Ogilby ("the veteran") for a review of a decision dated 6 October 1999, by a senior delegate of the Repatriation Commission ("the Commission").  The senior delegate affirmed a decision of the Commission dated 4 May 1999 that the veteran had not rendered qualifying service during the World War 2 period of hostilities and, therefore, was not entitled to receive a Gold Card.

2. What is meant by qualifying service, as it applies to the veteran, is given at section 7A of the Veterans Entitlements Act 1986 ("the Act").  The relevant part of section 7A reads:

   "7A(1) … a person has rendered qualifying service:

   if the person has, as a member of the Defence Force:

   rendered service, during a period of hostilities … 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;"

3. Section 85(4A) of the Act states a veteran is eligible for medical treatment if the veteran is aged 70 or over and has rendered qualifying service during the World War 2 period of hostilities, which is from 3 September 1939 to 29 October 1945.  This medical treatment is recognised by the issue of a Gold Card.
   The Issue

4. The sole issue in this case is whether the veteran rendered qualifying service or not during the World War 2 period of hostilities.  The veteran is aged 72 and served in the Royal Australian Navy Reserve during World War 2.
   The Evidence

5. This case, by consent of the parties, was heard on the papers.

6. The Tribunal had before it a bundle of papers which included, amongst other things:

(a)the veteran's record of service;

(b)the veteran's letter dated 15 February 1999, to the Minister of Veterans' Affairs;

(c)the veteran's letter, received 18 December 1999, to the Administrative Appeals Tribunal, with:

1. a report of Dr H. Nelson dated 18 December 1984;

(ii)  letters of proceedings – HMAS Bungaree;

(iii) newspaper clippings.

1. The veteran was born on 17 February 1927, enlisted in the Navy on 13 March 1945 and was demobilised on 26 May 1947.  His sea-going time was in HMAS Bungaree from 28 November 1945 to 8 July 1946.

2. The veteran bases his claim for qualifying service on the fact that during his service in HMAS Bungaree:

(a)mines were located and sunk by rifle or Bofors fire on 22 February 1946 on the Barrier Reef east of Cairns;

(b)there was general unrest in the port of Tanjong Priok, Java, when his ship was there from 8-29 March 1946.

Findings

1. While the Tribunal acknowledges the veteran was exposed to danger from the mines on 22 February 1946 and to the general unrest in Java in March 1946, both these dates are after 29 October 1945, which was the last day of the period of hostilities of World War 2.

2. The section of the Act is quite explicit.  Qualifying service for the issue of a Gold Card must have been rendered between 3 September 1939 and 29 October 1945, the period of hostilities of World War 2.

3. The veteran's service in the RANR from 13 March 1945 to 29 October 1945 was in Australia and this service cannot be considered when determining eligibility for  a Gold Card.

4. For the above reasons, the veteran is not entitled to a Gold Card.
   Decision

5. The decision under review is affirmed.

   I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of  Mr A. Argent, Member

   Signed:                 Judith Holt, Associate