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53/1996 Eligibility - Medical Discharges

Document

National Office Instruction

amending General Orders (1993 edition)

Instruction No. 53
Date of Effect: On receipt
6443

ELIGIBILITY -- MEDICAL DISCHARGES


Purpose

The purpose of this instruction is to clarify the policy regarding medical discharges from the Forces and resultant determinations of eligibility under s4AAA of the Defence Service Homes Act 1918.

Background

A recent case decided by the Federal Court in favour of the applicant has highlighted the need to refine the policy regarding medical discharges and determinations of eligibility.

The case involved an applicant who had enlisted for six years and became an assault trooper. Bad fortune befell him in his fifth year of service: while parachuting, an activity approved by his Commanding Officer, he broke his ankle. It was a serious injury, putting him in hospital for some months and subsequently causing his superiors to rate his fitness as 'below medical standard'. That meant he could no longer be an assault trooper.

His superiors counselled him in hospital. He was told that he had a choice: he could transfer to another corps and be a storeman, or he could be discharged, at his own request, on medical grounds. He chose the latter. He did not want a corps transfer, partly because he wanted to be an assault trooper, not a storeman, and partly, it seems, because he was told that there would be little future for him in the Army, there being, apparently, a process in train to weed out members who were not 100 per cent fit. He requested, and was eventually granted, a discharge.

Some years later he applied for a notice of eligibility under the Defence Service Homes Act 1918. The application was declined at both the primary and review decision stages because of advice from the Department of Defence that his discharge was not by reason of 'invalidity or physical or mental incapacity to perform duties'.

A subsequent appeal to the AAT affirmed the earlier decisions, but in reaching its decision, the AAT raised a jurisdictional issue of major importance. That issue was whether the decision-maker (the Secretary of DVA) has the power, when determining eligibility under the Act, to 'go behind' the Army's stated reason for discharge (ie the reason contained in the member's discharge record). Until the Court hearing there had been conflicting authority on this point, but the AAT member clearly thought there was such power. In other words, the AAT held that it could take other matters into account in deciding an issue under Subsection 4AAA(1)(b) and not rely solely on the reasons for discharge as recorded by Defence.

Subsequent appeals by the applicant in regard to his eligibility and a cross appeal by the Department in regard to the jurisdictional issue were heard by the Federal Court recently. The Court decided in favour of the applicant on the eligibility matter and against the Department on the jurisdictional issue.

In deciding upon the jurisdictional issue, the Federal Court expressed the view that there are good reasons for a construction of s4AAA of the DSH Act that not only allows the decision-maker to determine the issue, but also requires him or her to do so. To rely on the military's stated reason could lead to injustice in some cases. The reason may have been erroneously or misleadingly stated. The potential for injustice stems from the inflexibility of an approach that treats words used in one context as having clearly-defined, 'objective' meanings apt for application in another.

In a sense, this confirms the long held view that the Secretary and appointed delegates determine eligibility under the DSH Act and not officers in the various Defence records offices.

In the case before it, the Federal Court considered the discharge term 'at own request'. It commented that on the face of it, this implies that the member asked to leave instead of being asked to leave. The term is simply one of the categories that is apparently meaningful to the Army for its purposes, but it does not necessarily bear upon the criteria for determining whether a member should get a subsidised home loan or not. It obscures a very real possibility: an incapacitated or invalid soldier might seek, at his/her own request, to be discharged.

The Federal Court expressed the view that the DSH Act is beneficial legislation