Advisory from Disability Compensation Branch
No 1/2003
This is an advisory note only. Disability Compensation 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.
KOREAN PARTISANS
ISSUE
Whether Korean partisans who have been issued with a Certificate of War Veteran by the Government of the Republic of Korea, which recognises them as members of the regular forces, are accepted as being 'allied veterans' under the Veterans' Entitlements Act 1986 (VEA).
SHORT ANSWER
Yes. Although they have been issued with the Certificate of War Veteran almost 40 years after the end of hostilities in the Korean conflict, they have been recognised by their government as regular forces.
The Repatriation Commission (Decision CM5364) agreed that, for the purposes of the VEA, any person holding a Certificate of War Veteran issued by the government of the Republic of Korea be treated as though they were a member of the regular forces of the Republic of Korea.
REASONS
The VEA defines an allied veteran as a person who has been appointed or enlisted as a member of the defence force established by an allied country and who has rendered continuous full-time service during a period of hostilities (section 5C(1) refers).
Members of partisan or irregular forces are usually not members of regular forces and are not eligible to claim benefits under the VEA.
However, some partisan forces have been accepted as members of regular forces from the date that their governments recognised them as such. For example, irregular forces of the Netherlands and the Italian Garibaldi Brigades are two groups of irregulars accepted as part of the defence forces established by allied countries.
The Institute of Military History Compilation in South Korea has confirmed that partisan units existed during the Korean conflict and were under the command of the UN troops. While these partisans were not recognised as regular troops at the time, the Government of the Republic of Korea eventually recognised them as such through legislation enacted in 1993.
Four thousand former irregulars were issued with a Certificate of War Veteran. Holders of this certificate are regarded as war veterans in the same way as if they had been members of the regular forces. They are now entitled to receive the following benefits from the Korean government as are other veterans of the Korean regular forces:
- A cost of living allowance if they are aged 65 or over;
- Assistance towards the cost of a funeral service; and
- Medical treatment at half cost.
DETERMINING ELIGIBILITY
The Department has been advised that as well as the official Certificate of War Veteran issued by the government of the Republic of Korea, which is a legal document, there are other certificates issued by various organisations in Korea and widely used which are legally invalid.
It is unlikely that many claims for Korean partisans will be made to the Department in Australia, but any claims of this nature should be referred to the National Office so that the authenticity of the certificate can be verified.
CONCLUSION
Korean partisans with a Certificate of War Veteran issued by the government of the Republic of Korea are to be treated as though they were members of the regular forces of the Republic of Korea and as such are to be considered to be 'allied veterans' under the VEA.
They will still have to meet the 'incurred danger' test in order to have qualifying service as an allied veteran and the ten-year residency requirement to be eligible for a service pension.
Perry Phillips
Acting Director
Policy Eligibility and Research
17 June 2003