Subsection 4(2C) Subject to subsection (2D), an Australian soldier who, by reason of his misconduct or misbehaviour —
(a) was discharged from, or otherwise ceased to be a member of, the Naval, Military or Air Forces of Australia; and
(b) is included in a class of members specified in the Schedule to the War Gratuity Act 1945,
shall not be treated as an eligible person for the purposes of this Act, but this subsection shall not prevent a widow, widower or dependent parent of such an Australian soldier being an eligible person.
Subsection 4(2D) Where the relevant misconduct or misbehaviour of an Australian soldier referred to in subsection (2C) consisted only of his absence without leave, the Secretary may treat him as an eligible person for the purposes of this Act if the Secretary, having regard to the quality of his service outside Australia, considers it appropriate to do so.
1.Any member —
(a) Who has been absent without leave for a period of thirty days or more and has not, prior to such date as is prescribed in relation to the class of members in which the member is included, surrendered or been apprehended;
(b) Who after such date as is prescribed in relation to the class of members in which the member is included, has absented himself without leave for a continuous period of thirty days or more;
(c) Who is proved to the satisfaction of a prescribed authority to have been discharged or to have had his appointment terminated in consequence of wounds intentionally inflicted by himself or illness intentionally induced by himself;
(d)Who being an officer was, by sentence of court-martial, cashiered or dismissed from His Majesty's service or from the Defence Force or whose commission was cancelled, or whose appointment was terminated, by sentence of court-martial, or who was retired and such retirement was entered in Service records as being on account of an offence or misconduct of any kind committed during his service; or
(e) Who, by reason of any sentence or award of penal servitude, imprisonment or detention imposed on him while on the voyage for service overseas or while in a training camp, a ship or a depot, was unable to join a unit in the field, a ship or a depot (other than a unit or depot to which the member was posted for the purpose of undergoing penal servitude, imprisonment or detention, or a training camp or training depot) unless —
(i)he had, prior to the date of sentence or award, completed a period of overseas qualifying service; and
(ii)in the opinion of a prescribed authority, the circumstances of that service are such as would not justify his being disqualified for war gratuity.
2.Any member of the Naval Forces —
(a) Who has been discharged “Run”;
(b) Who has been dismissed from His Majesty's Service with disgrace;
(c) Who has been dismissed from His Majesty's Service;
(d) Who has been discharged from the Naval Service as “Services no longer required”;
(e) Whose services have been dispensed with on account of misconduct; or
(f) Who has been invalided from the Naval Services for causes due to misconduct or within his control.
3.Any member of the Military Forces —
(a) Who has been, by sentence of court-martial, discharged with ignominy from His Majesty's Service or discharged from the Defence Force;
(b) Who has been discharged for any of the following reasons:
(i)that he had been guilty of misconduct;
(ii)that he had made a false answer on attestation;
(iii)that he was considered unfit for the duties of his corps; or
(iv)that it was considered his services were no longer required,
and such discharge was, and was entered in Service records as being, on account of misconduct or discreditable service;
(c) Who has been discharged for any of the following reasons:
(i)that by reason of numerous convictions he is deemed to be incorrigible;
(ii)that he has been sentenced during his service to penal servitude or imprisonment by a civil court or by a court-martial; or
(iii)that he has been sentenced by a court-martial to detention for a period of six months or more; or
(d) Who has been discharged for any of the following reasons:
(i)that he was found to be not suitable for any military service;
(ii)that he was considered unsuitable for any further military duty; or
(iii)because his services, for any reason considered sufficient by the Military Board, were no longer required,
and such discharge was, and was entered in Service records as being, on account of misconduct or discreditable service, or was because he had been sentenced to death by a civil court during his service.
4.Any member of the Air Force —
(a) Who has been, by sentence of court-martial, discharged with ignominy from His Majesty's Service or discharged from the Defence Force; or
(b) Whose appointment has been terminated or who has been discharged for reasons designated in the authority for termination of appointment or discharge as disciplinary.
4.Any other class prescribed by the Regulations.
An Australian soldier who, by reason of his misconduct or misbehaviour, was discharged from or otherwise ceased to be a member of the Defence Forces and is included in a class of members specified in the schedule to the War Gratuity Act 1945 shall not be treated as an eligible person for the purposes of the legislation.
However, if the reason for separation from the Forces was not on account of misconduct or misbehaviour, irrespective of whether that reason is included in the schedule, the provisions of ss.4(2C) do not apply.
Where the relevant misconduct or misbehaviour was absence without leave, the delegate may treat the Australian soldier as an eligible person if, having regard to the quality of his service outside Australia, he/she considers it appropriate to do so. Where it is established that the misconduct or misbehaviour was absence without leave, and the Department of Defence has advised that the applicant completed satisfactory service outside Australia, eligibility may be established.
Where the information provided by the Department of Defence indicates that the applicant was discharged from the Forces by reason of misconduct or misbehaviour and he was an Army Officer, Air Force Officer or Airman, the following supplementary information (whichever questions are relevant) should be requested in order to make a determination as to eligibility.
Army Officers
(a)was the person dismissed by court-martial?
(b)was the person retired with a 'misconduct' entry in Service Records?
Air Force
(a) was the person discharged by court-martial?
(b)was the person's discharge designated in the authority as disciplinary?
Delegates do not need details of any individual's behaviour in such instances, as a determination may be made on the strength of the Department of Defence answer to the above questions.
Under no circumstances should other details of an applicant's discharge be sought from the Department of Defence.
Where an application is lodged by a widow, widower or dependent parent of an Australian soldier whose application was or would have been declined in accordance with the provisions of ss.4(2C), the application may be accepted.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/18330%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/18298%23comment-form
[3] https://clik.dva.gov.au/user/login?destination=node/18605%23comment-form
[4] https://clik.dva.gov.au/user/login?destination=node/18060%23comment-form