AN02 Guidelines for the application of subparagraph 69(1)(d)(ii) of the Veterans' Entitlements Act 1986

Advisory Note from Rehabilitation & Entitlements Policy Branch

No. 2/2012

Guidelines for the application of subparagraph 69(1)(d)(ii) of the Veterans' Entitlements Act 1986

This is an advisory note only.  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.

Introduction

These guidelines specifically address the application of subparagraph 69(1)(d)(ii) of the Veterans' Entitlements Act 1986 (VEA), where a person's service was terminated before they had the required three years' service by reason of the “...person's discharge on the ground of invalidity or physical or mental incapacity to perform duties”. Where the person's service is less than three years but subparagraph 69(1)(d)(ii) VEA is found to apply, the person can be regarded as a member of the Forces to whom Part IV of the VEA applies. This decision must be made before any claim for compensation under the VEA can be considered.

Generally, an individual can be considered a member of the Forces for the purposes of Part IV of the VEA where they have served for three years of full-time service (subject to the relevant timeframe). An exception can be made for discharge before the completion of the three years if the discharge was on the ground of invalidity or physical or mental incapacity to perform duties.

Look behind the stated reason for discharge

It would be expected that in most cases a discharge for reason of medical incapacity would be appropriately recorded in the person's service record. How — ever, legal advice received in May 2012 on the application of judicial comment on this provision indicates that there is some flexibility in the Department being able to consider the actual reasons for discharge and not the reason stated by Defence – in other words, “look behind” the formal discharge.

Sections 119 and 120 VEA

Section 120 of the VEA stipulates that matters are to be decided to the reasonable satisfaction of the Repatriation Commission and its delegates. Section 119 of the VEA sets out the nature of the evidence that the Repatriation Commission and its delegates may consider in making such a decision; that it is not bound to act in a formal matter or by any rules of evidence, but that it may inform itself on any matter as it sees just.  It also requires the Repatriation Commission act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities.

Guidelines

• Three main issues must be considered by delegates when determining whether subparagraph 69(1)(d)(ii) applies:
  • is there evidence that a medical condition existed at the time of the discharge?
  • does the evidence indicate that the condition resulted in a physical or mental incapacity to perform duties?
  • was this incapacity the reason for the person's discharge?
• The Repatriation Commission is bound to consider the eligibility of the person on the basis of all factual material provided, rather than the stated and prescribed reason for discharge. 
• Accordingly, delegates are able to consider the actual reasons for discharge and not be limited to the reasons stated by Defence. That is, they should 'look behind' the stated reason for the discharge.
• The discharge process as a rule involves a thorough investigation of the person's period of service and the findings from this investigation should be readily available in the person's service records. In particular, attention should be paid to the Separation Health Examination.
• Care should taken to distinguish between a person's unsuitability for service life and duties and a physical or mental incapacity to perform the same duties.
• Medical opinion must be obtained to support the contention that a medical condition existed at the time of the discharge.
• There is no requirement for the invalidity or incapacity to be related to service. For example, where a traumatic event renders a member incapable of performing duties, there is no requirement to link the event to service.
• A discharge on the basis of an expectation that an incapacity would develop at a later time would not generally be seen as complying with these guidelines.
• Having considered the evidence, delegates must, on the balance of probabilities, be satisfied that:
  • invalidity or physical or mental incapacity existed at the time of the service, which;
  • rendered the person unable to perform service duties.

Case law - Whiteman

Paul Whiteman had enlisted with the Army as an assault trooper. He broke an ankle while parachuting, and although after several months had largely recovered, was unable to return to his previous duties because of the extent of the injury. His superiors offered him a choice of moving to the work of a store man, or accepting a discharge at own request on medical grounds; he chose to take the discharge.

However, the paperwork on his final discharge showed him as having been discharged at own request with no mention of being on medical grounds.

The court found that Mr Whiteman was compelled by the degree of his physical incapacity to apply for the discharge, and that his discharge would only have been considered by himself and the military on account of the serious injury he sustained. The court concluded that the grounds for his discharge were physical incapacity to perform duties.

Case study 1

Brett alleges he was the victim of bastardisation during his Navy service and that this led to issues resulting in his discharge 9 months into his service. He has since been diagnosed with depressive disorder by a psychiatrist who states that the condition was in existence at the time of his discharge. While nothing is noted in his service records about the incidences of abuse, he has provided witness statements which support his contention. A comparison of testing held at the start of his service and towards the end show a significant deterioration in results. While his official discharge was not medical, considering the culture of the ADF at the time in regards to bastardisation, the delegate finds that behind the official reason for discharge there is sufficient evidence that Brett was mentally incapable of performing duties.

Case study 2

Simon's service records indicate that the reason for his discharge from the Army was that he had been absent without leave for a period exceeding 3 months. Simon contends that the real reason for his discharge was a physical incapacity to perform duties by reason of a back condition. However, the medical records show that his injury was gradually healing and that he was then fit for restricted, sedentary duties, with the expectation that he would be able to resume normal duties in time.  The delegate finds that he was not discharged because of a physical incapacity to perform duties.

{signed}

Mark Harrigan

Assistant Secretary

Rehabilitation & Entitlements Policy Branch

28 June 2012