31 August 2009

This week in Congress (31 August 2009) . . .

The following legislative activities, which affect U.S. servicemembers and veterans or concern military justice issues, are occurring this week in the U.S. Congress:

Congress is in its summer recess until 8 September 2009.
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For this week in military justice go to CAAFlog here.

30 August 2009

This week in Parliament, Courts and Tribunals (31 August 2009) . . .

The following legislative activities, which affect Australian servicemembers and veterans or concern military justice issues, are occurring this week in the Parliament of Australia:

There are no committee hearings scheduled this week that relate to military justice or veterans issues. Though that may change given the Lane decision.

The following military justice and veterans cases are occurring this week:

High Court of Australia

The full High Court does not sit this week.

Federal Court of Australia (Full Court)

No military justice or veterans cases will be heard this week

Defence Force Discipline Appeal Tribunal

The Tribunal is in recess; it will next sit on 10 September 2009.

26 August 2009

Retired U.S. Navy Chief settles malpractice lawsuit for $1 million

Retired OSC(SW) Edward Brock, U.S. Navy, who is permanently and totally disabled settled a malpractice suit against the Navy for treatment he received in March 2007. The Navy Times reports here Brock will be awarded approximately $1 million (USD) due to a misdiagnoses. The delay in correct diagnoses resulted in severe brain swelling and doctors had to remove parts of Brock's brain. American law, known as the Feres doctrine, prohibits active duty sailors from suing the military. However, Brock was retired at the time of the malpractice and thus was able to proceed with his federal lawsuit.

American Navy to get tougher on subtance-abuse sailors

San Diego Union Tribune's Steve Liewer reports here that the U.S. Navy is going to revamp it's drug policy. The Southern California newspaper indicates that the new policy increases by half the percentage of Navy personnel that must be randomly drug-tested each month and also requires every sailor to be screened within 72 hours of reporting to a new command. Those servicemembers who test positive face automatic discharges and dismissals.

High Court strikes down Australia's reformed military justice system

Today the High Court of Australia, in Lane v. Morrison [2009] HCA 29, unanimously struck down, as unconstitutional, the recently created Australian Military Court, or AMC.

Chief Justice French and Justice Gummow issued an opinion and a separate opinion was issued by Justices Bell, Crennan, Hayne, Heydon and Kiefel. Both opinions held that laws creating the AMC required it to use the exercise of judicial power of the Commonwealth conferred under Chapter III despite it being stated in the legislation it wasn't a court under the Constitution. Thus the High Court ordered a writ of prohibition barring the court from proceeding in cases.

In 2006, Parliament passed sweeping reforms to Australia's military justice system in response to a 2005 Senate inquiry which found serious problems with the military justice system. Parliament replaced the court-martial system with a standing court, the AMC, which was to display some features commonly associated with courts. The AMC commenced on 1 October 2007. But ex-Royal Australian Navy sailor Brian Lane brought a challenge to the new system after he was charged for a 2005 incident which alleged he had placed his genitals on a Royal Australian Army sergeant's forehead - - known as "teabagging."

A month after the AMC commenced, Lane was charged in November 2007 with "an act of indecency without consent" contrary to section 61(3) of the Defence Force Discipline Act 1982, or DFDA, involving the 2005 incident. Lane has denied the incident happened and has maintained his innocence. Alexander W. Street, SC, of Seven Wentworth Barristers' Chambers, who represented Lane argued the importance of the hierarchical command structure to the system of military justice which was derived from that of the United Kingdom at the start of federation. Street argued that there is an incompatibility between the 2006 amendments to the DFDA and section 68 of the Constitution.

The Attorney General for the State of Western Australia supported Lane's challenge and argued that the 2006 amendments went beyond what as a matter of history was encompassed by the administration of military justice by a hierarchical command structure. The Justices also held that creating the AMC as a court of record established it as binding and authoritative on decisions of guilt or innocence independently from the chain of command of the defence force including that of the Governor-General who serves as command-and-chief. "It is to exercise the judicial power of the Commonwealth," noted the justices.

CJ French and Justice Gummow held that "once [Parliament] decided to deal with the 2006 amendments not by the creation of a Chapter III court but by the creation of the AMC, the amendments became vulnerable to [] attack now successful made upon the validity of the AMC. The power conferred by section 51(vi) [of the Constitution] does not extend to the creation of a "legislative court." The High Court rejected the creation of "legislative courts" as used in the United States -- noting the American Congress had created Article I courts such as the Tax Court and the Foreign Intelligence Surveillance Court.

Justices Bell, Crennan, Hayne, Heydon and Kiefel held that "for the AMC to make a binding and authoritative determination . . . pursuant to the DFDA is to exercise the judicial power of the Commonwealth. There is no dispute that the AMC is not constituted in accordance with Chapter III. . . . the AMC cannot validly exercise the judicial power of the Commonwealth."

Further, CJ French and Justice Gummow noted that appeals from the AMC to the Defence Force Discipline Appeal Tribunal, which as an administrative body and not a court, would be repugnant to Chapter III of the Constitution, in particular to section 73(ii) which provides for the appellate jurisdiction of the High Court of Australia.

In response to the High Court's decision, Minister for Defence, Senator John Faulkner (ALP-NSW) issued a press release (found here) in which he indicated that as an interim measure, the Government will reinstate, by legislation, the pre-2007 military justice machinery to give Defence a level of certainty in military justice matters.

"The Government is committed to resolving the future of the military justice system, and will be making further announcements once the full implication of the High Courts' decision have been considered," said Faulkner.

"The Senate Committee had recommended a Chapter III court with oversight by the Attorney-General, and greater independence from the military. The legislation establishing the AMC fell short of these recommendations. The Government will review the High Court's decision carefully and consider alternative models for establishing the jurisdiction in a Chapter III court. I will work closely with the Attorney-General given his responsibilities in this area." Faulkner said.

The High Court's decision can be found here. The transcript of Faulkner's press conference can be found here.

25 August 2009

NIMJ to have a panel discussion on United States v. Denedo

The National Institute of Military Justice, or NIMJ, in conjunction with American University School of Law will host a panel discussion on the importance of the Supreme Court's decision in United States v. Denedo, and its impact on the American military justice system. The discussion will be held on Tuesday, 22 September 2009 at 1200, Washington College of Law, Room 603, 4801 Massachusetts Avenue, NW, Washington, DC.

Panel members are: (1) Eugene R. Fidell, President of NIMJ; (2) Pratik A. Shah, Assistant to the Solicitor General, U.S. Department of Justice; and (3) Dwight H. Sullivan, Senior Appellate Defense Counsel, Air Force Appellate Defense Division.

For further information go here.

23 August 2009

This week in Congress (24 August 2009) . . .

The following legislative activities, which affect U.S. servicemembers and veterans or concern military justice issues, are occurring this week in the U.S. Congress:

Congress is in its summer recess until 8 September 2009.
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For this week in military justice go to CAAFlog here.

Defence responds to report of independent review of the reformed Australian military justice system; ADF adopts 45 of 49 recommendations

Air Chief Marshal Angus Houston, RAAF, Chief of the Australian Defence Force, released Defence's response to the Report of the Independent Review on the Health of the Reformed Military Justice System.

"I can announce that 45 of the recommendations have been unanimously agreed in whole, in part or in principle. Many are already in the process of being implemented," said Houston in a press release issued Friday afternoon. "The findings of the Independent Review on the Health of the Reformed Military Justice System reinforce Defence's commitment to delivering impartial, rigorous and fair military justice outcomes."

The report, which can be found here , made 49 recommendations for improvements to the military justice system. ADF's response can be found here. Four recommendations were not agreed to. Recommendation 4 proposed the establishment of a senior position to oversee the ADF Investigative Service, or ADFIS, project implementation. That recommendation has become moot due to the establishment of the ADFIS Governance Board and changed command arrangements for ADFIS.

It was proposed, as Recommendation 20, that the Director of Military Prosecutions, or DMP, would discontinue the practice of personally undertaking prosecutions. The DMP has the same statutory right of apprearance under the Defence Force Discipline Act 1982 as civilian state and territory DMP counterparts. This recommendation was rejected by ADF because it was considered to not allow the DMP to appear in matter before the Australian Military Court and would undermine the role of the DMP.

Recommendation 26, proposed an amendment to the Defence Force Discipline Act 1982, so that a stay of execution of punishments affecting personal liberty imposed by summary authority would not be automatic upon notification of an appeal, which is the current procedure. There was no evidence at this time that vexatious appeals were being lodged to avoid the automatic imposition of stays. Thus ADF concluded that the recommendation was premature. The proposal will be revisited in one year.

The last rejected proposal, Recommendation 43, was a recommendation to transfer administrative support for the conduct of the CDF Commissions of Inquiries ot the Inspector General of the ADF. The proposal was rejected as it was considered inappropriate for the IG, as the internal watchdog for military justice, to become responsible for the administration of Commissions of Inquiry.

Houston said a comprehensive Implementation Plan had been devised, providing steps for progression for further military justice reforms over the next three years. "The Implementation Plan contains the organisational priorities for military justice action and reform int he period leading up to an the next independent external review within the next 3 - 5 years," Houston said. The Implementation Plan can be found here.

"A great deal of work has been done over the last 4 years to improve the military justice system and a great deal of work remains to be done over the next 3 years," said Houston.

Some of the highlights of the agreed proposals include the following:
  • establish a service police officer career model that allows personnel to rotate in and out of ADFIS (Recommendation 5)
  • amend the Discipline Officer scheme to allow personnel to the rank of Warrant Officer to be appointed as Discipline Officers (Recommendation 8)
  • amend the Defence Force Discipline Act 1982 to apply a single scale of punishments applicable across all ranks, including "Extra Duties" (Recommendation 10)
  • the establishment of a new Australian Military Court facility in Canberra (Recommendation 21)
  • expanding the available pool of potential jurors by lowering the minimum rank for panel members to Corporal and Petty Officer (Recommendation 23)
  • the rules of evidence in the Australian Military Court will be the same rules of evidence as in the Federal Court of Australia (Recommendation 27)
  • the establishment of a "Discipline Coordination and Efficiency Committee" (Recommendation 28)
  • expand the Defence Force Discipline Appeals Tribunal to six members and allow a single member to hear and determine sentencing appeals for Class 2 and 3 offences or to refer an appeal to the full tribunal for determination (Recommendation 32)
  • promulgate a 90 day benchmark for the referral of Redress of Grievance to the Chief of the Defence Force and Service Chiefs (Recommendation 39)
  • amend the Defence (Inquiry) Regulations and Defence Act to provide Inquiry Officers the requisite powers and protections to compel ADF Reserve personnel and Defence APS staff to participate in inquiries (Recommendation 42)
  • provide on recruitment, a pamphlet highlighting DFDA and Performance Appraisal System in a disciplined military force, and emphasising the rights and responsibilities of individuals (Recommendation 45)

Aussie veterans' health week

This week is Australian veterans' health week. The purpose of the week is to encourage veterans to get involved in activities that promote and maintain health and well being.

Here's a link to the VA's website about health week. For a list of health week activities in your state or territory go here.

This week in Parliament, Courts and Tribunals (24 August 2009) . . .

The following legislative activities, which affect Australian servicemembers and veterans or concern military justice issues, are occurring this week in the Parliament of Australia:

Thursday, 27 August 2009

Senate Legal and Constitutional Affairs Legislation Committee, Access to Justice (Civil Litigation Reforms) Amendment Bill 2009, 0900, MELBOURNE: Cliftons, 440 Collins Street (Note: This legislation has the potential to affect veterans' litigation.)

The following military justice and veterans cases are occurring this week:

High Court of Australia

The full High Court is sitting in Canberra but none of the cases being heard this week involve military justice or veterans issues. The Court's calendar can be found here.

Lane v. Morrison, case [2009] HCA 5, which was argued in April, is due to be decided at any time. The case involves a servicemember in the Royal Australian Navy who challenged the constitutionality of the newly created Australian Military Court after charges were brought against him. This blog has previously discussed the Lane case here.

Federal Court of Australia (Full Court)

Wednesday, 26 August 2009

Smith v Commonwealth of Australia [2009] FCA 684, VID516/2009, Settlement of Index. Veterans' entitlements - "double dipping" - entitlement to pension for war-caused injury - payment in settlement of common law action in negligence - whether both payments in respect of incapacity from the same injury - whether Veterans Entitlements' Act 1986 (Cth) s 30C is applicable to the facts - approach to be taken to application of s 30C.

Defence Force Discipline Appeal Tribunal

The Tribunal is in recess; it will next sit on 10 September 2009.

Australian Military Court

There are no cases this week.

22 August 2009

DVD launch: "Going Solo - Dealing with absence in Defence families"

Yesterday, in Brisbane, Major General Mick Slater, Royal Australian Army, Commander of the 1st Division, hosted the regional launch of the DVD "Going Solo - Dealing with Absence in Defence Families." It is the latest initiative in ongoing work to help Australian Defence Force families manage the challenges of a family member's absence from home.

For further information on the DVD an ADF press release was issued here.

19 August 2009

U.S. Navy loses ex-sailor's presidential pardon application and it cannot be re-submitted due to Justice Dept policy

[WARNING: This is a personal gripe about my individual case.]

In February 2007 whilst living in San Diego, California I submitted a presidential pardon application directly to the U.S. Secretary of the Navy concerning my 1992 general court-martial. It was submitted to SECNAV as instructed by U.S. Department of Justice, or DOJ, regulations. The application was submitted by registered U.S. Postal Service Priority mail and was in fact received and signed for. In cases where an individual is seeking a pardon from an American court-martial the application or petition for clemency is not submitted directly to DOJ but rather to the service secretary.

The Navy has lost the application and has thus failed to forward it on to DOJ for consideration. Seven months after I submitted the pardon application, in September 2007, I moved home to Sydney, Australia (I hold both American and Australian citizenship). DOJ has a "well-established policy to not process applications for clemency from non-residents of the United States." Here is a link to a letter dated 5 May 2009 from DOJ Pardon Attorney Ronald Rodgers (which I just received yesterday).
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This is not the first time the U.S. Navy has lost evidence or documentation in my case. Here is a list of current and past missing items from the record-of-trial despite granted motions to compel, orders to show cause in FOIA cases, Congressional and White House inquiries as well as DoD IG investigations:

1) RCM 401(c)(2)(A) recommendation by special court-martial convening authority for general court-martial is missing from the record-of-trial an no copies exist despite a 2003 granted motion to compel by the Navy Marine Corps Court of Criminal Appeals, an order to show cause from a U.S. District Court judge, and a Congressional inquiry by Congresswoman Susan Davis. To date the RCM 401(c)(2)(A) recommendation remains missing.

2) RCM 406 pretrial advice of the judge advocate to the special court-martial convening authority is missing despite granted motions to compel and no copies exist. The IO at the Article 32 held that "in general the evidence was week or nonexistent." Moreover, she checked the no box where it asked if reasonable grounds existed to believe the accused committed the offenses. The GCMCA RCM 406 advice references both the SPCMCA judge advocate's advice and the RCM 401(c)(2)(A) recommendation. To date the Rule 406 advice to the SPCMC remains missing.

3) UCMJ article 138 complaint of wrongs - November 1992 letter of resolution of my art. 138 complaint by the officer exercising general court-martial jurisdiction over my commanding officer is missing. A May 1993 letter by the Assistant Secretary of the Navy references the November 1992 resolution letter which was in my favor and I was reinstated to CTA3 with all rights and privileges restored. In 2005 a judge on the Court of Federal Claims ordered the Navy to turn over the November 1992 letter but the Navy claimed it could not locate it. Additionally, a U.S. District Court judge issued an order to show cause in a Freedom of Information Act case and a separate Congressional inquiry by Congresswoman Susan Davis for the missing letter. Also a separate motion to compel was granted by the military courts. To date the letter remains missing.

4) Denials of request for individual military counsel, otherwise known as IMC, by the SPCMCA and the GCMCA are missing from the record-of-trial. I had requested IMC of then-Lieutenant Tammy Tideswell (now a Captain) who was the judge advocate general corps officer who assisted me in filing a previous meritorious UCMJ article 138 complaint against the SPCMCA who appointed the IO at the Article 32 hearing and then who recommended my general court-martial over the contrary findings and report of the Art. 32 officer. The SPCMCA in my case denied the IMC (gee maybe the SPCMCA should have disqualified himself since I had already filed a meritorious complaint of wrongs against him with the assisted of the very attorney who he denied my request for IMC.) To date the denial by the SPCMCA and GCMCA of my request for IMC remains missing.

5) Illegal general court-martial subpoenas. Months before my general court-martial was convened and even before the appointment of the UCMJ article 32 officer general court-martial subpoenas were issued by the U.S. Navy to gain private records (talk about putting the cart before the horse). On the record, a military judge, ordered the Navy to turn over copies of the illegal subpoenas. But Navy lawyers went on the record and a told a military judge they could not find copies of any of the subpoenas. Nearly a decade later some of the illegal subpoenas have been recovered and others still remain missing.

6) Military pay records were missing until 2004. In 1992 a military judge, on the record, granted a motion to compel the pay records but the Navy could not be find or locate them. (There are two separate sets of pay records (1) Leave and Earning Statements and (2) internal records to show how and when a direct deposit or allotment is deposited.) The recovered records show that approximately $5,000 in Navy pay was not being deposited into my bank accounts during the time period of the UCMJ article 123a offenses. Routing and account numbers were off by one or two digits and the money was returned to the Navy/DFAS.

The records were found pursuant to a FOIA appeal in Air Force records held by DFAS in Denver, Colorado and were not at DFAS Cleveland, Ohio which is usually where Navy pay records are held. From the outset of my court-martial in 1992 through 2003 DFAS Cleveland had maintained that I never served in the Navy because they had no pay record of me. (I've heard unsubstantiated rumors that the formerly called Naval Investigative Service acquired the pay records from DFAS Cleveland in early 1992 -- prior to the convening of my court-martial -- and then mailed them to Air Force records at DFAS Denver -- the records were effectively buried. It was only due to my attorneys at Heller Ehrman, who handled the FOIA appeal, that the records were found in 2004 in Air Force records. I've sent a FOIA request to NIS (renamed NCIS) for a copy of the investigative file. The entire NIS file on my case is missing as there is no record of it. Yet under cross examination the former special agent testified that an extensive file exists -- but is missing.)

7) RCM 1105 - Manual for Courts-Martial submission missing from the record-of-trial. The RCM 1106 recommendation states that the counsel for the accused failed to submit an RCM 1105. However, the senior defense counsel for Naval District Washington, who was my lead defense attorney, has stated that he did in fact submit an RCM 1105 within the time mandates. To date the RCM 1105 remains missing and no copies have been located. The military courts ignored this issue. No mention of it in any of the opinions.

17 August 2009

New remuneration structure for ADF officer aircrew and air traffic controllers

Today the Australian Defence Force announced a new officer aviation remuneration structure for aircrew and air traffic controllers. In a press release, Defence Minister for Personnel, Materiel and Science Greg Combet (ALP - Charlton, NSW) said that "the new Officer Aviation Remuneration Structure (OARS) introduces a flexible remuneration system that ensures this specialist military workforce of over 2,000 members receives comparable pay for comparable work against the aviation industry benchmark."

For further information on OARS the ADF's press release can be found here.

16 August 2009

This week in Congress (17 August 2009) . . .

The following legislative activities, which affect U.S. servicemembers and veterans or concern military justice issues, are occurring this week in the U.S. Congress:

Congress is in its summer recess until 8 September 2009.
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For this week in military justice go to CAAFlog here.

15 August 2009

This week in Parliament, Courts and Tribunals (17 August 2009) . . .

The following legislative activities, which affect Australian servicemembers and veterans or concern military justice issues, are occurring this week in the Parliament of Australia:

Wednesday, 19 August 2009

Joint Committee on Public Accounts and Audit, hearing on Inquiry into financial reporting and equipment acquisition at the Department of Defence and Defence Material Organisation, 1115, Committee room 2R1, Parliament House

Friday, 21 August 2009

Joint Committee on Foreign Affairs, Defence and Trade, Review of the Defence Annual Report 2007-2008, 0845, Committee room 2R1, Parliament House

The following military justice and veterans cases are occurring this week:

High Court of Australia

Monday, 17 August 2009

The full High Court is sitting in Sydney to hear special leave applications none of which relate to military or veterans issues.

The full High Court will next sit on Monday, 24 August 2009, in Canberra, to hear appeals but none of the cases that week involve military or veterans issues.

Lane v. Morrison, case [2009] HCA 5, which was argued in April, is due to be decided at any time. The case involves a servicemember in the Royal Australian Navy who challenged the constitutionality of the newly created Australian Military Court after charges were brought against him. This blog has previously discussed the Lane case here.

Federal Court of Australia

The full court is not hearing any military or veterans cases this week.

Defence Force Discipline Appeal Tribunal

The Tribunal is in recess; it will next sit on 10 September 2009.

Australian Military Court

There are no cases this week.

14 August 2009

Learning about a victory 64 years ago . . .

There is a movement afoot to "Keep the spirit of '45 alive!" 64 years ago today I wasn't even thought of, nor was my father or mother. My grandfather on the other hand fought in World War II in the U.S. Navy and was decorated with the Distinguished Flying Cross.

Today in both Australia and the United States we celebrate Victory in the Pacific ("VP") day as it's known in Australia and Victory Over Japan ("V-J") day as it's known in the United States. I'm home in Sydney and today marks the first time in my life that I'm attending a VP day commemorative ceremony.

On the morning of 15 August 1945 (14 August 1945 in the United States) the Emperor of Japan announced that Japan would accept the Allies ultimatum to surrender. On the same day just after nine o'clock in the morning, as the majority of Sydneysiders had just begun their day at work, Prime Minister Ben Chifley's voice was heard over the radio announcing that Japan had bowed to the ultimatum issued by the Allies and peace was at hand.

PM Chifley's announcement was a signal for a deluge of unprompted happiness never before or since seen in Australia (so I've been told). Martin Place in Sydney, which is where I will be today, became a rallying point as was Bourke Street in Melbourne. 64 years ago Australians, not normally given to public displays of emotion, danced in the streets through piles of shredded paper which rained down from city office buildings. Traffic came to a stop and trams inched along the streets with revelers clinging to the sides of roofs.

Every year since 1946 a commemoration ceremony has taken place at the Cenotaph in Martin Place, Sydney. The New York Times has an interesting article here, the San Diego Union Tribune here, and the Northside here about what today means and of the WWII veterans that fought for the victory.

For my generation and the younger generations we should take time today to ask a WWII veteran about their service and to share their stories -- home in America stop by a VFW or American Legion club or in Australia an RSL. There are many stories of history you can learn by talking to a veteran that a book, movie or teacher in a classroom can't teach you.

12 August 2009

ABA newsletter: President urges enactment of Equal Justice for Our Military Act

According to an American Bar Association newsletter from last month, President H. Thomas Wells, Jr., says servicemembers deserve equal treatment and urges enactment of the Equal Justice for Our Military Act of 2009, HR 569. The ABA newsletter can be found here.

Aussie inquiry faults skipper of HMAS Sydney II in nation's worst naval disaster

Today Minister for Defence John Faulkner (ALP-NSW) released the loss of HMAS Sydney II Commission of Inquiry Report. The Commission was appointed in May 2008 after the March 2008 discovery of both wreckages of the HMAS Sydney II and the German vessel that sank it, the HSK Koroman.

The purpose of the Commission was to inquire into, and report upon the circumstances associated with, the 1941 sinking of HMAS Sydney II and the consequent loss of life and related events. Although there were prior investigations into Sydney II, none were a formal inquiry like the one convened in 2008.

Air Chief Marshal Allan G. "Angus" Houston, AC, AFC, Chief of the Defence Force, said today in a press release that on 10 November 1941 HMAS Sydney II, a Leander class light cruiser, was lost with all hands following an engagement with the disguised German raider, HSK Kormoran (also known as Schiff 41), off the Western Australia coast.

"For a long time our nation has struggled to understand how our greatest maritime disaster occurred. The unanswered questions have haunted the families of those brave sailors and airmen that never came home," Houston said.

President of the Commission, the Honourable Terence Cole, AO, RFD, QC, said "the commanding officer of the HMAS Sydney II was not expecting to encounter any merchant ship in the location when he encountered Kormoran. That knowledge together with his knowledge of the possible presence of a German raider should have caused the sighted vessel to be treated as suspicious."

Captain Joseph Burnett, commanding officer of the Sydney II brought his ship to "point blank range" of the German vessel -- 1000 metres (3281 feet) of the Kormoran. The Germans caught the Sydney II crew by complete surprise and within minutes 70 percent of the Australian sailors and airmen were killed.

The report indicates that the remaining crew who were not instantly killed sustained serious wounds or suffered smoke inhalation from toxic fumes within the ship, and had little chance of survival when the Sydney II sank.

In total 645 sailors and airmen perished in what is the worst naval disaster in Australia's history. It was also the largest allied vessel, in World War II, with all hands on board killed when it sank. But the Commission came short of any formal findings of negligence on the part of Burnett.

Cole, who previously served as deputy judge advocate general of the ADF and until 1998 was a judge on the Supreme Court of New South Wales, further said that "each of the many frauds, theories and speculations reported to the inquiry were thoroughly investigated and none were found to have any substance whatsoever."

Vice Admiral Russell H. Crane, AM, CSM, RAN, Chief of Navy, has encouraged those interested in the HMAS Sydney II to read the report. Crane indicated that the loss of the HMAS Sydney II needs to viewed in the context of the times.

"An appreciation of the training, tactics and procedures of the time and the particular circumstances of the day in question, including the fact that merchant vessels frequently did not properly respond to queries by warships, must be taken into account to help understand why HMAS Sydney II approached so close to HSK Kormoran," said Crane.

Transcripts of the Commission's proceedings can be found here; the ships plans can be found here; simulated 360-degree DSTO visualisations can be found here; and a complete copy of the Commission's report, which is three volumes, can be found here.

U.S. Navy looking to boot 6,000 chiefs through a retirement board

Yesterday the Navy Times reports here that approximately 6,000 chief petty officers will face a new retirement board. All enlisted sailors who have been in the U.S. Navy for more than 20 years and have spent three years in his or her current paygrade are eligible for the first board unless exempt. Originally the Navy had its eyes on 11,000 chiefs, senior chiefs and master chiefs for forced retirement but about 5,000 were later set aside due to an exemption.

The board will meet for three weeks starting 21 September. Afterward the names of those selected will be released to commanding officers. Then commanders will have one week to notify those who are on the list that they must leave the Navy by 30 June 2010.

11 August 2009

Aussie VA announces review of the Veterans Line service

The Australian Department of Veterans Affairs has announced a review of the Veterans Line service. Veterans and Veterans Families Counseling Service, or VVCS. is conducting the review. Veterans Line is an after hours crisis counseling service provided by the VVCS. The service assists veterans and their families with crisis situations outside office hours. Counseling is provided free of charge.

Crisis Support Service, Inc provides the actual services through a contractual agreement with VVCS. As part of that agreement, VVCS conducts regular reviews of the service. The review panel is soliciting views of the Aussie veterans, whether they are regular users of the after hours counseling service or not.

The survey closes 7 September 2009. It can be conducted online here. Alternatively, a pdf questionnaire can be retrieved here. If completing the pdf questionnaire it can be returned via email as indicated on the form.

For a complete list of services provide by the VVCS go here.

RSL provides comments on accreditation for aged care homes affecting veterans

The Returned and Services League of Australia, or RSL, has provided an official comment to the Department of Health and Ageing's call for comment on the review of the accreditation process for aged care homes within Australia. RSL's submission can be found here. The review of accreditation will potentially have an affect on all Aussie ex-servicemembers who reside in aged care homes. Thus the RSL is taking a pro-active role in protecting the interests of Aussie veterans in the review process.

[Disclosure: I am a member of the RSL.]

09 August 2009

This week in Congress (10 August 2009) . . .

The following legislative activities, which affect U.S. servicemembers and veterans or concern military justice issues, are occurring this week in the U.S. Congress:

Congress is in its summer recess until 8 September 2009.
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For this week in military justice go to CAAFlog here.

08 August 2009

Bi-partisan bill introduced to increase pay to severley injured veterans and medal of honor recipients

Last week before the U.S. House of Representatives took its summer recess three lawmakers, Congressmen Steve Buyer (R-Ind.), Henry Brown (R-S.C.) and Michael Michaud (D-Me.) introduced the Severely Injured Veterans Benefit Improvement Act of 2009. HR 3407, which is now available on Thomas here, would increase pay to $1,410 (USD) a month for severely disabled soldiers. Those veterans who are 100 percent disabled would receive approximately $8,642 (USD) per month if HR 3407 is passed and enacted.

The bill also has a provision in it to increase the monthly compensation for Medal of Honor recipients from $1,000 to $2,000 (USD).

For further information Congressman Michaud issued a press release last week which can be found here.

This week in Parliament, Courts and Tribunals (10 August 2009) . . .

The following legislative activities, which affect Australian servicemembers and veterans or concern military justice issues, are occurring this week in the Parliament of Australia:

Parliament returns from its winter recess this week; however, there are no committee hearings on military personnel or veterans matters.


The following military justice and veterans cases are occurring this week:

High Court of Australia

The full High Court will next sit on Monday, 24 August 2009.

Lane v. Morrison, case [2009] HCA 5, which was argued in April, is due to be decided at any time. The case involves a servicemember in the Royal Australian Navy who challenged the constitutionality of the newly created Australian Military Court after charges were brought against him. This blog has previously discussed the Lane case here.

Federal Court of Australia

Friday, 14 August 2009

Kowalski v. Repatriation Commission, case SAD26/2009. Veteran's claim appeal under the Veterans' Entitlement Act 1986 from decision of single judge to full court.

Defence Force Discipline Appeal Tribunal

The Tribunal is in recess; it will next sit on 10 September 2009.

Australian Military Court

There are no cases this week.

05 August 2009

Pressurised escape training for Aussie submariners to be reinstated

[UPDATED]

Yesterday Minister for Defence Personnel, Materiel and Science Greg Combet (ALP - Member for Charlton, NSW) announced that pressurised escape training for submariners in the Royal Australian Navy will be reinstated. This comes as part of the Navy's submarine sustainability strategy which I have previously discussed here.

The training is to be recommenced at the Submarine Escape Training Facility, or SETF, at HMAS Stirling which is located on Garden Island, in the state of Western Australia. "The SEFT simulates the escape from a Collins Class submarine including the effects of water pressure. Provision of pressurised submarine escape training is a critical component in the submariner training continuum" said Combet in a press release.

Ron Hilton, a spokesman for Combet, told me today in a telephone interview that the previous contract for escape training had expired in June 2008. Earlier this year interim training for RAN submariners was undertaken in Quebec, Canada to meet RAN requirements. The training program is now expected to be recommenced in Australia later this year.

According to Hilton no sailor in the RAN would have been permitted to go underway unless they had the escape training first. Additionally, sailors who were initially trained must undergo a re-certification every three years. Those sailors would not have been permitted to return to sea until they had the escape re-training. Whilst there was a lapse in renewing the escape training contract sailors were never put at any safety risk because RAN regulations required escape training prior to any submariner being assigned sea duty.

Costs for the training program for two years is $4.32 million (AUD). For further information the ADF press release can be found here.

02 August 2009

This week in Congress (3 August 2009) . . .

The following legislative activities, which affect U.S. servicemembers and veterans or concern military justice issues, are occurring this week in the U.S. Congress:

The House of Representatives is in its summer recess until 8 September 2009.

The Senate is still in session this week but there are no matters relating to military personnel or veterans affairs issues expected to be heard this week.

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For this week in military justice go to CAAFlog here.

01 August 2009

Web-based TRICARE Assistance Program launches to provide mental health services for troops and their families

Today a web-based TRICARE Assistance Program demonstration has been launched within the continental United States and will continue through 1 April 2010. The purpose of the program is to test the use of web-based technology related to mental health. The new technology will deliver information and counseling services to active duty members of the U.S. armed forces and their families. It will also be available to selected reserve members and their families who are enrolled in TRICARE Reserve Select. Assistance counselors are available for confidential, private discussions about stress management (work, family or personal), family difficulties and pressures including separation and deployments, relationship and marital issues, parent-child communications and self-esteem.

For further information go to TRICARE's website here.

This week in Parliament, Courts and Tribunals (3 August 2009) . . .

The following legislative activities, which affect Australian servicemembers and veterans or concern military justice issues, are occurring this week in the Parliament of Australia:

Parliament is in its winter recess until 11 August 2009; however, there are committee hearings still occurring.


Tuesday, 4 August 2009

House and Senate Joint Public Works Committee, Proposed fit-out of the ANZAC Park West Building, 1410 hours, Committee room 2R1, Parliament House. The underlying issue is to provide a modern office facility costing approximately $45.5 million (AUD) to house over 900 employees of the Department of Defence. For further information the Committee issued two press releases which can be found here and here.
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The following military justice and veterans cases are occurring this week:

High Court of Australia

The full High Court will next sit on Monday, 24 August 2009.

Lane v. Morrison, case [2009] HCA 5, which was argued in April, is due to be decided at any time. The case involves a servicemember in the Royal Australian Navy who challenged the constitutionality of the newly created Australian Military Court after charges were brought against him. This blog has previously discussed the Lane case here.

Federal Court of Australia

Wednesday, 5 August 2009

Smith v. Commonwealth of Australia [2009] FCA 684, VID 516/2009. Veterans entitlement action - "double-dipping" - entitlement to pension for war-caused injury - payment in settlement of common law action in negligence. Whether both payments in repsect of incapacity from the same injury and whether Veterans Entitlements' Act 1986 (Cth) s 30C is applicable to the facts.

Defence Force Discipline Appeal Tribunal

The Tribunal is in recess; it will next sit on 10 September 2009.

Australian Military Court

There are no cases of significance this week.

GI bill transferability starts today

Today, for the first time since the creation of the GI bill, educational benefits will be able to be transferred to spouses or children of those members of the U.S. armed forces who participated in the post 9/11 GI bill. For further information go to the Department of Defense's website here.