Browne and the Department of Defence re: Bell DHAAT 12 (3 October 2019) File Number 2018/019 Re Mr Neville Browne Applicant And Department of Defence Respondent Tribunal Mr Mark Sullivan AO (Presiding Member) Mr David Ashley AM Ms Jane Schwager AO Hearing Dates 8 July 2019 DECISION On 3 October 2019 the Tribunal decided to recommend to the Minister that the decision of the Chief of Army, Lieutenant General David Morrison AO of 5 May 2015, that no further action be taken to recognise Private Alec Bell regarding his actions as a platoon medic with the 7th Battalion, the Royal Australian Regiment during the Vietnam War, be affirmed. CATCHWORDS DEFENCE HONOUR – Medal for Gallantry – Vietnam - service as a medic –adequacy of training – available evidence LEGISLATION Defence Act 1903 – Part VIIIC – Sections 110T, 110VB (1) Defence Regulation 2016, Section 35. Commonwealth of Australia Gazette No S25 Letters Patent and Regulations for the Australian Gallantry Decorations - dated 4 February 1991. REASONS FOR DECISION Introduction 1. On 28 June 2011, Mr Neville Browne lodged a submission to the Defence Honours and Awards Appeals Tribunal (the Tribunal) Inquiry into unresolved recognition for past acts of naval and military gallantry and valour, (the Valour Inquiry).1 In his submission, Mr Browne sought recognition, by way of a ‘posthumous bravery award’ for Private Alec Bell, who died of wounds while serving with the 7th Battalion, the Royal Australian Regiment (7 RAR) in Vietnam on 29 January 1968. Mr Browne provided a further submission dated 11 April 2013, and further material dated 27 March 2015. 2. Following the Valour Inquiry, Mr Browne’s submissions were provided to the Chief of Army for consideration. A ‘desk-top’ review was then conducted by Army with the purpose of a recommendation or a course of action. The Chief of Army wrote to Mr Browne on 5 May 2015, stating: ‘Army could not locate any evidence that Private Bell’s actions were not appropriately considered, or that any recommendation was obstructed or unfairly treated in any way. Therefore in the absence of a failure in due process or new authoritative and compelling evidence, Army recommended to the Parliamentary Secretary (for Defence) that no further action be taken to recognise Private Bell. The Parliamentary Secretary has agreed to this recommendation.’ 2 3. On 10 March 2018, Mr Browne applied to the Tribunal for a review of this decision, seeking that Private Bell be posthumously awarded the Medal for Gallantry (MG).3 4. Mr Browne stated in his application for review to the Tribunal that he has based his application ‘on a number of matters’. These matters were: ‘New evidence reveals acts of gallantry by Alec Bell on several occasions’; ‘An act of malfeasance by the Commander 7 RAR in Unit Routine Orders number 239 April 1967 which precluded accurate records being maintained’; and ‘For reasons unknown the number of awards for gallantry to National Servicemen who served in Vietnam is very small for the number of men who served. Plus there are items on statistics that may be of interest to the Tribunal’.4 5. In accordance with the Tribunal’s Procedural Rules, on 29 March 2018, the Chair of the Tribunal, wrote to the Secretary of the Department of Defence seeking a report which 1 Valour Inquiry Submission No. 88, Mr Neville Browne, 28 June 2011. 2 Letter, OCA/OUT/2015/R21045046, Chief of Army to Mr Browne dated 5 May 2015. 3 Application for Review of Decision, Mr Browne to the Tribunal, 10 March 2018. 4 Letter, Mr Neville Browne to the Tribunal, 10 March 2018. 2 refers to the evidence under the Department’s control that is relevant to the application for review.5 6. On 28 June 2018, Defence provided a copy of its report to the Tribunal.6 In its report Defence advised that a merits review of this matter would be undertaken by the Defence Historical Honours Review Board (HHRB).7 7. On 29 June 2018, the Tribunal provided a copy of the Defence Report to Mr Browne and offered him the opportunity for comment.8 8. On 21 August 2018, Mr Browne responded to the Defence Report providing his comments.9 9. After meeting on 31 August 2018 the HHRB, in relation to this matter: ‘agreed that although Private Bell’s actions could be considered courageous, he was doing his job as was expected of a medic at that time. His actions were highly professional, but not of such merit as to deserve retrospective recognition. The HHRB formed the view that the original decision by the then Chief of Army in 2015 to not support retrospectively awarding Private Bell with a Medal for Gallantry, or other honours recognition, should stand’. 10. The Directorate of Honours and Awards of the Department of Defence wrote to Mr Browne on 2 November 2018 advising him of the HHRB’s conclusion. Tribunal Jurisdiction 11. Pursuant to Section 110VB(1) of the Defence Act 1903 (the Defence Act) the Tribunal has jurisdiction to review a reviewable decision relating to a defence honour if an application is properly made to the Tribunal. The term reviewable decision is defined in Section 110V(1) and includes a decision made by a person within the Department of Defence or the Defence Force, to refuse to recommend a person for a defence honour, in response to an application. 12. Section 35 of the Defence Regulation 2016 lists the defence honours reviewable within the Tribunal’s jurisdiction. Included in the defence honours listed in Section 35 is the MG. The Tribunal considered that the Chief of Army’s decision of 5 May 2015 to not recommend Private Bell for the MG in response to Mr Browne’s application constitutes a reviewable decision. Therefore, the Tribunal has jurisdiction to review this matter. 13. The role of the Tribunal is to determine the correct or preferable decision in relation to the application having regard to the applicable law and the relevant facts. In accordance with Section 110VB(1) of the Defence Act, as the matter under review is a defence honour, the Tribunal does not have the power to affirm or set aside the decision but may 5 Letter, DHAAT OUT/2018/126 to the Secretary, dated 29 March 2018. 6 Letter, DGPERS-A/OUT/2018/R34875700 Director General Personnel-Army to the Tribunal, 28 June 2018. 7 Ibid. 8 Letter, DHAAT/OUT/2018/444, to Mr Browne, 29 June 2018. 9 Letter, Mr Browne to the Tribunal, 21 August 2018. 3 make recommendations regarding the decision to the Minister. Under Section 110VB of the Defence Act, the Tribunal must conduct a merits review of a reviewable decision where an application for review has been properly made. Private Bell’s service 14. On 13 July 1966, Alec Ernest James Bell, a 20 year old postal worker from East Victoria Park in Western Australia, was enlisted for two years of national service with the Regular Army Supplement (RAS (NS)). 15. As part of the Third National Service intake he was posted to Alpha Company, 2nd Recruit Training Battalion, at Puckapunyal in Victoria to undertake recruit training. Upon graduation in September 1966, Private Bell was posted to the Infantry Corps Wing of the 3rd Training Battalion at Singleton in NSW where he undertook advanced infantry training. 16. According to his service record, Private Bell was transferred back to Puckapunyal in December 1966 as a rifleman to join the newly-raised 7 RAR. The battalion had just completed the 6th Australian Task Force led Exercise Barra Winga, a final shake-down exercise in preparation for deployment to Vietnam. This one-week intensive battle preparation exercise was held at the Shoalwater Bay training area in Queensland. The purpose of the exercise was to test the Battalion and supporting units in tactics employed by the Viet Cong. Private Bell did not take part in this training and it would appear he did not receive any other battle preparation training.10 17. Although posted to the battalion as a rifleman, Private Bell was also required to perform the duties of platoon medic. In order to do this work he undertook stretcher bearer/medic training which involved subjects on health and basic first aid. 18. On 8 April 1967, Private Bell embarked for Vietnam in HMAS Sydney, disembarking at Vung Tau twelve days later. 19. Private Bell was the platoon medic of 2 Platoon, A Company, 7 RAR. On 29 January 1968, after serving in Vietnam in a number of operations, he was mortally wounded in action during Operation COBURG. Mr Browne’s first submission to the Valour Inquiry was concerned with Private Bell’s service in this operation. The evidence provided by Mr Browne regarding Private Bell was a quote from the book Conscripts and Regulars, with the Seventh Battalion in Vietnam, 11 which stated, ‘When Sergeant (Thomas) Bourke was asked to describe the bravest act he saw in Vietnam he wrote: ‘Private Dinga Bell was platoon medic on the late afternoon of 29th January 1968. In the first few moments the Platoon Commander 2LT O’Brien, and all the NCO’s were wounded including Private Bell who had received a direct hit from a rocket. Even though shockingly wounded Private Bell tried to get to the other wounded. When he could not move he gave orders to another soldier as to how to help them. Even when we finally got him onto the Dustoff stretcher Private Bell was still giving advice as to the care of the other 10 Army Research Report into Request for Review of Category 3 Public Submission 088 – 5714453 Alec Ernest James Bell, R34781467, 27 June 2018.