23 July 2010

On holiday until September

The blog is on holiday until September 2010. Sean is on Army Reserve training; Nick is overseas on holiday and I'm busy with HR 569 in the States and with the Keep 45 Alive for the 65th anniversary of Victory in the Pacific Day in Australia.

We will return to posting the first week of September 2010.

19 July 2010

This week in Congress (19 July 2010) . . .

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:

Monday, 19 July 2010

House Veterans Affairs Committee, hearing on Serving Virginia's Rural Veterans
, 0900 hours, Bedford County Board of Supervisors Meeting Room, County Administration Bldg., 122 East main Street, Bedford, Virginia. To view a live webcast of the hearing go here.

Wednesday, 21 July 2010

House Veterans Affairs Committee, Roundtable on Innovative Treatments for TBI and PTSD, 1000 hours, Room 334 Cannon House Office Building. To view the live webcast go here.

Thursday, 22 July 2010

House Veterans Affairs Committee, Subcommittee on Health, Healing the Physical Injuries of War, 1000 hours, 334 Cannon House Office Building.
To view the live webcast of the hearing go here.
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For this week in military justice go to CAAFlog here.

18 July 2010

This week in Parliament, Courts and Tribunals (19 July 2010)

The following legislative activities, which affect Australian servicemembers, veterans or concern military justice issues, relate to freedom of information or national security, are occurring this week in the Parliament of Australia:

No matters are pending in Parliament. Following the calling of a Federal Election, the Senate will be prorogued and the House of Representatives dissolved at 1659 hours, Monday, 19 July 2010.

High Court of Australia

The High Court is in recess and next sits 27 July 2010 in Canberra.

Federal Court of Australia (Full Court)

No cases are being heard this week which involved the subject matter of this blog.

Defence Force Discipline Appeal Tribunal

The Tribunal next sits on 19 August 2010.

Veterans' Review Board


For a full list of this week's cases in Brisbane, Canberra, Melbourne, Perth and Sydney go here.

Administrative Appeals Tribunal

For a complete Daily List of cases currently being heard in the Administrative Appeals Tribunal in the various States and Territories go here.

17 July 2010

Serious flaws noted in GOP dissenting views on HR 569

Washington, DC attorney Dwight Sullivan has noted on CAAFlog, here and here, that there are serious flaws in the Republican dissenting views contained in the Report on HR 569 (Equal Justice for Our Military Act of 2010) The flaws concern arguments for a different inequity concerning Uniform Code of Military Justice article 66 [10 USC 866] appellate review and not Supreme Court certiorari review. Mr. Sullivan criticizes Reps Gohmert and Rooney - both former Army JAGs - for signing off on the dissent given the flaws.

Perhaps Rep. Tom Rooney (R-Florida) needs to check his facts before he speaks out or puts his name to a dissent. Earlier this year Rep. Rooney falsely stated, during a House Judiciary Committee markup, that I had renounced my U.S. citizenship. I'm still a United States citizen and never renounced my American citizenship. The same day he stated it, I asked Rep Rooney for an apology and never got one.

U.S. Army suicide rate increasing

Today's Washington Post has an article about the increase in U.S. Army suicide rates here.

11 July 2010

This week in Congress (12 July 2010) . . .

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:

Tuesday, 13 July 2010

House Veterans Affairs Committee, hearing on Veterans at Risk: The Consequences of the U.S. Department of Veterans Affairs Medical Center Non-Compliance
, 1300 hours, U.S. Courthouse, 111 South 10th Street, St. Louis Missouri. To view a live webcast of the hearing go here.

Wednesday, 14 July 2010

Senate Veterans Affairs Committee, Review of Veterans' Claims Processing: Are current efforts working?, 0930 hours, 418 Senate Russell Building.

House Veterans Affairs Committee, Subcommittee on Oversight and Investigations, hearing on Examining the Progress of Suicide Prevention Outreach Efforts of the U.S. Department of Veterans Affairs, 1000 hours, room 334 Cannon House Office Building. To view the live webcast of the hearing go here.

Thursday, 15 July 2010

House Veterans Affairs Committee, Subcommittee on Economic Opportunity, Markup of H.R. 929, H.R. 3685, H.R. 4359, H.R. 4469, H.R. 4664, H.R. 4765, H.R. 5360 and H.R. 5484, 1300 hours, 334 Cannon House Office Building.
To view the live webcast of the hearing go here.
___________________

For this week in military justice go to CAAFlog here.

This week in Parliament, Courts and Tribunals (12 July 2010)

[YET ANOTHER SLOW WINTER WEEK] The following legislative activities, which affect Australian servicemembers, veterans or concern military justice issues, relate to freedom of information or national security, are occurring this week in the Parliament of Australia:

Parliament is in its Winter recess until 24 August 2010.

High Court of Australia

The High Court is in recess and next sits 27 July 2010 in Canberra.

Federal Court of Australia (Full Court)

Wednesday, 14 July 2010

Kowalski v. Repatriation Commission [2010] FCA 409, SAD55/2010, Settlement of Index

Defence Force Discipline Appeal Tribunal

The Tribunal next sits on 19 August 2010.

Veterans' Review Board


For a full list of this week's cases in Brisbane, Canberra, Melbourne, Perth and Sydney go here.

Administrative Appeals Tribunal

For a complete Daily List of cases currently being heard in the Administrative Appeals Tribunal in the various States and Territories go here.

10 July 2010

Defence response to The Australian article "Soldiers’ despair confronts Defence"

Today The Australian published this article entitled "Soldiers' despair confronts Defence" . By this afternoon the Australian Department of Defence, or DoD, acknowledged the content of the Preliminary Study for the Military Health Outcomes Program (MilHOP) Survey and indicated that it has already investigated and/or resolved many of the issues raised by the respondents over the 19 year period considered by the Preliminary Study.

In a press release DoD states that one of its highest priorities is the health and well-being of the men and women who serve in the Australian Defence Force ("ADF").

DoD claims the individual responses highlighted in the article are the participants’ personal perceptions and do not necessarily reflect the full context of the issues raised. According to DoD the article includes a number of errors as follows:
  • No Australian soldier has died as a result of an alleged drug overdose in Afghanistan. An Australian soldier, Private D, remains in a serious condition and is being closely monitored, however his clinical condition has improved. Private D is being supported by his family and the ADF at home in Australia.
  • There is no evidence to support the suggestion that addiction to prescription drugs and an underground trade in illicit substances and sex is widespread. As a result of concerns raised some time ago, a comprehensive fatigue management program is in place to support Royal Australian Air Force aircrew deployed on operations.
  • This article gives the impression that the surveys were altered because of the responses provided in the Preliminary Study and focus groups. This is not the case. The specific intent of the Preliminary Study and focus groups was to use the responses provided to assist design of the most useful questions to ask in the MilHOP survey in order to gain a comprehensive understanding of psychological health issues in the ADF.
  • The article suggests that the Dutch assistance to provide emergency evacuations only includes wounded personnel. The ADF and our coalition partners treat the recovery of both wounded and deceased personnel as critically important. However, in all circumstances the tactical situation will determine how to best achieve evacuation.

08 July 2010

Womens veterans forum opened in United States

Today the Department of Veterans Affairs opened registration on for a women veterans forum that will address the quality of VA health care, the provision of benefits for women, and ways for VA to continue improving access to the care and benefits for women veterans.

“The VA forum will bring advocates for women veterans together to learn about VA services and to share valuable information with each other,” said Secretary of Veterans Affairs Eric K. Shinseki. “The forum will also give veterans’ advocates the tools they need to help build women Veterans networks and communities throughout VA.”

Shinseki and VA department heads will attend the forum on 28 July at the Women’s Memorial in Arlington, Virginia.

Because of anticipated demand, available seats will be filled on a first-come, first-served basis, and confirmed registrants will be notified by email once registration is filled. Registration—through the Center for Women Veterans by e-mail at 00W@va.gov -- closes when either all seats are filled or no later than July 16.

The Forum will run from 0700 to 1500 hours (U.S. Eastern Time) with morning presentations and an afternoon information marketplace in which participants are invited to move through the gallery and gather resources and materials provided by VA program offices, Veterans Service Organizations and advocacy organizations. There will also be an afternoon screening of the updated “Lioness” documentary film.

VA’s women Veterans health conference held earlier in the month will help inform the Forum with the most up-to-date information available from VA’s health care system.

Presentations from the event will be made available online. Feedback about this event and announcements on future events will be available to Forum participants. For more information contact the Center for Women Veterans at 202 461-6193 or by e-mail at 00W@va.gov.

There are about 1.8 million women Veterans among the nation’s total of 23 million living veterans. VA estimates women veterans will comprise 10.5 percent of the veteran population by 2020.

AAT FOIA decision released (Vasta and Anor and Civil Aviation Authority)

Vasta and Anor and Civil Aviation Safety Authority
[2010] AATA 499; 6/7/2010; Senior Member PW Taylor SC

FREEDOM OF INFORMATION - exemptions - documents relating to aircraft maintenance and safety claimed to be exempt under sections 40, 43 and 45 of the FOI Act - whether disclosure could prejudice future supply of information to agency - whether disclosure of documents could reasonably be expected to unreasonably affect an organisation's lawful business, commercial or financial affairs - distinction between mandatory and voluntary disclosure of information to agency - whether certain reports can be characterised as interim reports - scope of requests and adequacy of identification of documents responsive to request - costs - in respect to the first application the decision under review is set aside and in respect to the second application the decision under review is varied and remitted

Held: In the Vasta application (2008/0261): Set aside the decision under review. Substitute a decision that the documents listed in the accompanying "Schedule: Exempt Documents Claim - Vasta Request" are not exempt documents.

In the McKinnon application (2008/2385): the decision under review is varied as follows:

(a) the documents listed in the accompanying "Schedule: Exempt Documents Claim - McKinnon Request" are not exempt documents where the words "NOT EXEMPT" appear in the Decision column in the Schedule (subject to deletion of the identifying information referred to in paragraph 127);

(b) the McKinnon application be remitted pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 to CASA to identify any additional responsive documents, in the light of the matters contained in paragraphs 132 to 134 of the Reasons for Decision.

The proceedings are adjourned for the purpose of considering further submissions CASA wishes to make on the question of any recommendation about costs. If CASA does not wish to address any further submission, in accordance with FOI Act s 66, recommend to the Attorney General that costs of each Applicant's be paid by the Commonwealth.

06 July 2010

How should Australia mark the ANZAC Centenary?

That's the question the Australian Government has asked today.

Australians are being called on to share their ideas on how the Anzac Centenary is commemorated in the lead-up to 2015, said Minister for Veterans’ Affairs and Minister for Defence Personnel Alan Griffin today.

Griffin said between 2014 and 2018 marks 100 years since the First World War.
“The Anzac Centenary provides an opportunity to remember those who have fought and served in all the wars of the last hundred years, and those who stayed behind,” he said.

“On Anzac Day the Australian Government announced a National Commission on the Commemoration of the Anzac Centenary involving former Prime Ministers the Right Honourable Malcolm Fraser PC, AC, CH and the Honourable Bob Hawke AC, and the National President of the RSL Rear Admiral Ken Doolan AO (Retd).

“The role of the National Commission is to listen to the Australian community about how we as a nation should honour and remember 100 years of service.

“All Australians – every school, community and ex-service organisation – are asked to think about how we, as a nation, should commemorate the Anzac Centenary and put ideas and suggestions forward to the National Commission,” Griffin said.

Addressing the first meeting of the National Commission in Sydney today Mr Griffin welcomed three new members of the Commission; editorial cartoonist and journalist Warren Brown, former ADF serving member and peacekeeper Major Matina Jewell (Retd) and veterans advocate and nurse Kylie Russell.

The Commission – these six Australians – have a vital role to play in seeking Australia’s ideas on how to mark this historic milestone and will report to government on the way forward by early next year.

“Although there are no living links to the First World War – the legacy has continued through to the men and women who have served in the Australian forces since. During the Anzac Centenary we will honour this legacy,” he said.

For more information about how to make a submission visit www.anzaccentenary.gov.au. Submissions close on 17 September 2010.

05 July 2010

This week in Congress (5 July 2010) . . .

[SLOW WEEK] 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:

Monday, 5 July 2010
Independence Day Holiday

The Senate is in recess until Monday, 12 July 2010.

The House is in recess until Tuesday, 13 July 2010.
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For this week in military justice go to CAAFlog here.

04 July 2010

Happy 234th B-Day America! (Still a work in progress)

Whilst it's the 5th of July at home here in Sydney, it's the 4th of July in my other home country of the United States of America. Thus it's Independence Day. America turns 234 today.

I'm a regular reader of the OB Rag Blog (as I'm a former resident of the San Diego seaboard community of Ocean Beach). Today I was reminiscing of paddling out on my surf board near the OB pier to watch 4th of July fireworks and then getting back in quickly to the beach to partake in the annual marshmallow fight. In response to a post today entitled "Thoughts About the Fourth" I wrote the following:
Happy Independence Day from down under. As I read the above post from my home in Sydney (Australia) I cannot help but think of a serious inequity in law since the birth of the United States.

The brave young American men and women who serve in military uniform around the globe do not enjoy equal access to the Supreme Court of the United States (”SCOTUS”) should they be convicted by courts-martial. The phrase “Equal Justice Under the Law” engraved into SCOTUS’ building does not apply to our military personnel.

Most citizens are unaware that since 1789 – the year SCOTUS was established – a little known inequity in federal law which prevents many court-martialed servicemembers from ever accessing the high court. To those uniform citizens the Supreme Court simply does not exist. But believe it or not, illegal aliens and enemy combatants enjoy SCOTUS access. I cannot reconcile how enemies and illegal aliens can freely petition our highest court in the land while the young men and women who serve our country risking their lives to protect and defend us are shut out.

The Supreme Court may review only those cases out of the Court of Appeals in which one of the following circumstances applies: (1) The defendant could receive the death penalty. (2) The case was certified to the Court of Appeals by the judge advocate general for review. (3) The appeals court granted the accused’s petition for review. (4) Or the appeals court otherwise granted relief to the accused.

The above looks like a robust review – but it’s not. The death penalty is not on the table in most cases. The judge advocate general does not certify many cases for review—and when he does, this almost always benefits the government, not the servicemember. The Court of Appeals only rarely otherwise grants relief. Most of the time, a convicted servicemember can hope to reach the high court only if he can first show good cause to persuade the Court of Appeals to grant his petition for review. The Court of Appeals declines to hear about 90 percent of cases, so about 90 percent of court-martialed servicemembers are completely sealed off from the Supreme Court. For those servicemembers, the high court simply does not exist.

Conversely, if that servicemember does manage to get his case before the Court of Appeals and then prevails, the government is permitted to appeal the decision to the Supreme Court. And therein lies the inequity.

In 2004 when I lived in OB (I moved to Sydney in 2007 – I’m both an American and Australian) I brought the inequity to the attention of Rep. Susan Davis and Senator Dianne Feinstein. Both have introduced legislation to correct the inequity. In the current (111th) Congress, the Equal Justice for Our Military Act of 2009, H.R. 569 and the Equal Justice for United States Personnel Military Personnel Act of 2009, S. 357 have been introduced.

The legislation has broad support of (1) Fleet Reserve Association; (2) Military Officers Association of America; (3) National Institute of Military Justice; (4) Jewish War Veterans of the United States; (5) American Bar Association; (6) National Association of Criminal Defense Lawyers; (7) ACLU and many others. Three former chief judges of the top military court – Court of Appeals for the Armed Forces (formerly known as the Court of Military Appeals) support the legislation. Two of those judges were Reagan appointees.

Our sister common law countries – including my other home country of Australia – afford their military personnel equal access to their highest courts.

In the last Congress (110th) a similar bill, Equal Justice for Our Military Act of 2007 H.R. 3174, was passed by 2/3 voice vote in the House but was held up in the Senate because the Bush administration opposed it. In this Congress (111th Congress) H.R. 569 received a hearing in Committee and was favorably reported out to the House. (You can read the Congressional hearing transcript here: http://www.gpo.gov/fdsys/pkg/CHRG-111hhrg11150222/pdf/CHRG-111hhrg11150222.pdf ) H.R. 569 still awaits action with less than 6 months left in this Congress.

I agree with NYT’s Frank Rich that America is a work in progress. Part of that progress is recognizing injustices and inequities; and then fixing them – making them right. While we sit on the beach this 4th of July, eat hot dogs and hamburgers, drink beer (not on the beach anymore), watch fireworks and have marshmallow fights remember that not every American citizen has the same rights you have. Those American military servicemembers serving in remote places around the world to protect and defend you are treated like second class citizens when it comes to accessing our nation’s highest court.

Reserve Forces Day; Employeers to witness Reservists in action


Yesterday I attended the Australian Reserve Forces Day National Parade in Sydney at the Domain. Governor General Quentin Bryce AC (pictured right) inspected the parade.

On the heals of Reserve Forces Day, Parliamentary Secretary for Defence Support, Dr Mike Kelly AM MP announced that 22 employers of Defence Reservists will travel to Solomon Islands today (5 July 2010) as part of Exercise Boss Lift - the Defence program designed to encourage employer support for the Reserves.

Dr Kelly encouraged the Defence Reservists in the Solomon Islands to take advantage of the opportunity to show their bosses the skills they develop while on deployment and how they can be utilised in the civilian workplace.

“This is a unique opportunity for employers and aims to highlight the skills Reservists gain from being in the Australian Defence Force (ADF) and how those skills can benefit civilian employers,” Dr Kelly said.

“Boss Lift and other employer engagement activities like Exercise Executive Stretch, also help employers understand their Reservist’s important contribution to Defence capability.”

Employers participating in the four-day Boss Lift program will visit soldiers from the New South Wales-based 5th Brigade, who are currently on a four-month deployment to the Solomon Islands.

While in Honiara and surrounds, the employers will have the opportunity to see their Reservists on Operation ANODE, the Australian Defence Force’s contribution to the Australian-led Regional Assistance Mission to the Solomon Islands.

03 July 2010

This week in Parliament, Courts and Tribunals (5 July 2010)

[ANOTHER SLOW WEEK] The following legislative activities, which affect Australian servicemembers, veterans or concern military justice issues, relate to freedom of information or national security, are occurring this week in the Parliament of Australia:

Parliament is in its Winter recess until 24 August 2010.

High Court of Australia

The High Court is in recess and next sits 27 July 2010 in Canberra.

Federal Court of Australia (Full Court)

No cases involving subject matters of this blog will be heard by the Full Court this week.

Defence Force Discipline Appeal Tribunal

The Tribunal currently has no scheduled sittings.

Veterans' Review Board


For a full list of this week's cases in Brisbane, Canberra, Melbourne, Perth and Sydney go here.

01 July 2010

Coalition wants to increase payments to Aussie veterans

The Coalition recently announced it will introduce new indexation arrangements for Defence Force Retirement and Death Benefits Scheme (DFRDB) members as part of its commitment to supporting Australia’s veterans and ex-service personnel.

Under a Coalition government, from 1 July 2011 those DFRDB members aged 55 years or older will have their military superannuation pensions indexed to the greater of the Consumer Price Index (CPI), Male Total Average Weekly Earnings (MTAWE) or the Pensioner and Beneficiary Living Cost Index (PBLCI).

The Coalition received submissions from the Returned Services League, or RSL, National President, Rear Admiral Ken Doolan AO RAN (Rtd) on military superannuation together with the long-standing efforts of the Defence Force Welfare Association, or DFWA, Colonel David Jamison (Rtd), National President of the DFWA. As a result, the changes are being made as part of the Coalition’s recognition of the unique nature of military service.

Widows of DFRDB superannuants will also benefit from the announced changes.

This change would bring into line the indexation of DFRDB superannuation with the aged pension. Currently DFRDB superannuation is indexed according to the CPI.

If the indexation rate had increased in line with the aged pension, military superannuants would have received an extra $28.40 per fortnight to their pension (if they received the full pension rate) in March this year.

I have previously discussed the issue of indexation here.

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