Advisory from Disability Compensation Branch

No 14 of 2000

This is an advisory note only.  Disability Compensation Branch, Income Support Branch and Legal Services Group have agreed this policy view.  It is not a Repatriation Commission Guideline or a Departmental Instruction.   The advice is not intended to conflict with the proper application of the Veterans' Entitlements Act 1986 or the judgements of the Courts.  It may be subject to change as a result of further interpretation by the Courts of the legislation.  Nevertheless it represents a considered view that should be taken into account by all delegates.

EXTENSION OF VEA BENEFITS FOR SOUTH-EAST ASIAN SERVICE 1955 TO 1975

Issue

What are the extension of entitlements to Australian Defence Force (ADF) personnel who served in South-East Asia from 1955 to 1975 that came into effect on 1 January 2001. What changes have been made to the Veterans' Entitlements Act 1986 (VEA).

Background

This advisory was originally issued on 8 December 2000 in expectation of legislation being passed and allotment certificates being issued. This version takes in account that the legislation has passed and the allotment certificates were issued.

In the 2000/2001 Budget the Government announced that it would change the classification of a number of deployments to provide compensation and/or income support under the VEA. These changes followed recommendations contained in the Mohr Report - “Review of Service Entitlement Anomalies in respect of South-East Asian Service 1955-1975”. Not all the recommendations contained in the Mohr Report were accepted by the Government.

What is qualifying service in post WWII conflicts?

The criteria for qualifying service for members of the Australian Defence Force in post World War II conflicts are:

• allotment to and service in the operational area as described in Schedule 2 of VEA, during the period specified, or

• having rendered warlike service and name or unit included on allotment instrument issued by Defence.

The concept of “ in operations against the enemy...at a time when the person incurred danger from hostile forces of the enemy...” has no application to members of Australia's Defence Force in conflicts after WWII.

New qualifying service

• Naval service with the Far East Strategic Reserve (FESR) between 2 July 1955 and 31 July 1960

Naval service with FESR was covered in paragraph 6D(1)(b) of the VEA and Army and Air Force service was covered by Item 2 and 3 of Schedule 2 to the VEA. All branches of the Australian Defence Force are now included in:

-Item 2 of Schedule 2 from 29 June 1950 to 31 August 1957 (dates unchanged) for qualifying service, and

-Item 3 of Schedule 2 from 1 September 1957 to 31 July 1960 (end date brought forward) for qualifying service.

(Note:Service in both periods remains operational service for disability pension claims.)

-amended paragraph 6D(1)(b) from 1 August 1960 to 27 May 1963 provides operational service only.

• Service by RAN radio operators at Kranji Wireless Station and RAF Base Seletar in Singapore, between 11 May 1960 and 31 July 1960

The Department of Defence have "allotted for duty” personnel who served within this 82-day period for the purposes of Item 3 of Schedule 2.

• Australian Defence Force personnel who served on the Malay-Thai border between 1 August 1960 and 27 May 1963

The Department of Defence have "allotted for duty” units that have served on the Malay-Thai border. Because of difficulties in establishing whether an individual served in the area Advisory No2/2001 - Malay-Thai Border should be consulted.

• Service on the Malay Peninsula and Singapore between 17 August 1964

and 11 August 1966.

Army and RAAF units were stationed here between 17 August 1964, the date of the first Indonesian landing in Malaya and 11 August 1966 the date of the Treaty of Bangkok that ended the Indonesian Confrontation. The Department of Defence have allotted units for duty for the purposes of Item 7 of Schedule 2.

• Service during the Indonesian Confrontation on

- HMAS Vampire from 8 January to 10 January 1965, and

- HMAS Yarra, Parramatta and Sydney from 4 June to 6 June 1964

The 2000-2001 Budget announcement indicated that these ships would be classified as having operational service. Since then, a further review by Defence determined that from 1 January 2001 the ships have both operational AND qualifying service for the periods mentioned.

The Department of Defence has allotted these ships under Item 6 of Schedule 2.

• Service by Australian Defence Force personnel seconded to the Royal Malaysian Armed Forces during the Indonesian Confrontation between 17 August 1964 and 11 August 1966

The Department of Defence has allotted for duty Australian Defence Force personnel seconded to the Royal Malaysian Armed Forces under Item 7 of Schedule 2.

• Merchant mariners who served with RAN personnel as part of the crew on HMAS Boonaroo between 17 March 1967 and 13 April 1967 or as part of the crew on HMAS Jeparit between 19 December 1969 and 11 March 1972 during the Vietnam War

Only those merchant mariners who served on board the ships during the time that the ships were commissioned into the RAN are eligible. These ships were commissioned in the RAN for discrete periods during the Vietnam War. Prior to commissioning, the ships were recorded as MV Jeparit or MV Boonaroo. When commissioned, the ships appear as HMAS Jeparit or HMAS Boonaroo. After de-commissioning, the ships reverted to MV Jeparit and MV Boonaroo. Merchant mariners who served on the ships during the non-commissioned periods are not covered under the VEA.

The Minister for Veterans' Affairs has issued a determination under section 5R of the VEA to cover service on HMAS Jeparit and HMAS Boonaroo.

New 'warlike service'

• North-East Thailand (including the RAAF at Ubon Air Base) from 25 June 1965 to 31 August 1968 will be warlike service.

New instruments were issued to replace the existing determination on Ubon as follows:

Service between 31 May 1962 to 24 June 1965 is operational service only, and

Service between 25 June 1965 to 31 August 1968 is warlike service.

Only service in the latter period constitutes qualifying service.

Medal requirement for service in Malaya not required

The requirement for the award of the General Service Medal, Clasp Malaya, in relation to ADF service in Malaya during the period 1 September 1957 to 27 May 1963 has been removed.

The requirement is allotment to, and service in, the area described in Item 3 of Schedule 2 of the VEA.

Service records

Veterans' records should already indicate whether a claimant served in the area and identify the unit concerned. Existing service records on file may be used if they verify service in these areas. If they do not support the veteran's claim to have the required service further information should be sought from the relevant service records office in the Department of Defence.

Mere presence in an operational area does not of itself confer eligibility. The Department of Defence must also have allotted personnel and units for duty in the operational area. The end date for Item 7 remains as 30 September 1967 although no units or individuals have been allotted for duty after 14 September 1966. Units that now have eligibility as a result of the extension of entitlements on 1 January 2001 will have an end date of 11 August 1966, the date of the Treaty of Bangkok that marked the official end of Confrontation.

What changes have been made to the VEA?

Schedule 2 - The end date for Item 3 is 31 July 1960 the date that the Malayan Emergency officially ended. Service in Borneo (Item 6) and on the Malay-Thai Border (Item 5) from 17 August 1964 is now included in Item 7 which has been renamed Malaysia, Singapore and Brunei.

Section 6 Operational Service - Subparagraph 6D(1)(a)(iii) is amended to change the end-date for service in North-East Thailand to 24 June 1965.

Paragraph 6D(1)(b) is repealed and replaced with “was at any time during the period from and including 1 August 1960 and including 27 May 1963, in the area comprising the territory of Singapore and the country then known as the Federation of Malaya”. This means that the start date is now 1960 instead of 1955 and the description is Malaya and Singapore instead of FESR.

The VEA continues to refer to FESR in sub-sections 6D(2) and 6D(3), which cover the “port to port”, provisions. The reference to FESR means service “at any time during the period from and including 1 August 1960 and including 27 May 1963, in the area comprising the territory of Singapore and the country then known as the Federation of Malaya”.

Section 7A Qualifying Service - The GSM Malaya Clasp requirement mentioned above is deleted.

Effective date of changes

1 January 2001 is the effective date of changes made by the Veterans' Affairs Legislation Amendment (Budget Measures) Bill 2000. The earliest possible date for the backdating of any benefit or payment is 1 January 2001.

Eligibility under other Commonwealth compensation acts - Effect of Compensation offsetting

It is expected that some veterans who have become eligible to claim under Part II of the Veterans' Entitlements Act 1986 due to these changes will have previously claimed under other Commonwealth compensation schemes. The usual compensation offsetting arrangements will apply as set out in Division 5A, Part II of the VEA (Sections 30A to 30P).

Note: The compensation offsetting provision for disability pensions granted under Part II commenced on 21 June 1994 and applies to compensation payments received after this date. Any compensation received prior to 21 June 1994 is not subject to compensation offsetting under Part II of the VEA.

What benefits will be available?

Disability pension

If a person has operational service and incurred an injury or disease that they believe was sustained during, or aggravated by, that service, they are entitled to claim compensation in the form of disability pension and treatment under the Veterans' Entitlements Act 1986 (VEA).

Defence Service Home loan

Operational service also gives eligibility for a Defence Service Home Loan.

Service pension

In addition, they are eligible to apply for the service pension if they have qualifying service, including warlike service.

Advice to applicants

A person may test their eligibility by lodging a claim with the Department of Veterans' Affairs. They should contact the nearest Veterans' Affairs office, which will arrange for a claim form to be sent to them. Ex-Service organisations are also able to provide assistance in obtaining and completing a claim form.

No veteran should be told they are ineligible to make a claim. A decision on a claim may determine that they are ineligible, but all claims must be accepted and tested.

Commonwealth and Allied Veterans

The Budget extensions are only for ADF forces. There are no extensions for Commonwealth or Allied forces. However, two points should be made.

First, there is no Commonwealth eligibility for service in Malaya from 1957 to 1960. You will note that the exclusion previously contained in paragraph 7A(1)(b) of the VEA has been removed since Item 3 of Schedule 2 now has an end date of 1960 instead of 1963.

Second, although a warlike instrument has been issued for Ubon, Commonwealth service personnel who may have been stationed there at the same time as Australian Forces are not be eligible for qualifying service. This is because the area is not included in Schedule 2 and therefore they do not satisfy the legislative requirement to have served having served in an operational area contained in Schedule 2.

Contacts

Please contact Anthony Staunton on 02 6289 6640 or Marie Leach on 02 6289 6046 for further information.

Perry Phillips

Director

Policy Eligibility and Research

6 March 2003