Opinion Number. 751

Subject

DEFENCE FORCES WHETHER DISCHARGE CERTIFICATE GRANTED TO MEMBER OF DEFENCE FORCES CAN BE AMENDED: POWER TO MAKE REGULATION PROVIDING FOR AMENDMENT OF INCORRECT DISCHARGE

Key Legislation

DEFENCE ACT 1903: AUSTRALIAN MILITARY REGULATIONS 1916, Part X

Date
Client
The Secretary, Department of Defence

The Acting Secretary, Department of Defence, has forwarded the following memorandum for advice:

The Secretary, Prime Minister's Department, has referred to this Department an extract from the report of the Royal Commissioner Judge Eagleson in respect of the charges made by Mr A.B.C. in connection with the construction of the Transcontinental Railway, also Mr C.'s Australian Imperial Force discharge. The extract contains the following statement:

C.'s discharge is incorrect in two important statements:

  1. His rank is stated as 'Q.M.S.'. He never attained that rank, his rank was Acting Company Quartermaster Sergeant.
  2. It states his conduct was 'good'. If the evidence placed before me as to his having deserted is true, which I believe it to be, his conduct was not good, but very bad in that he deserted.

It would appear that the discharge was issued under an erroneous impression at the time prevailing, that as the soldier was not convicted by court-martial, and was not summarily punished by his Commanding Officer for an alleged offence, he being an N.C.O. could not be given other than a 'good' discharge.

C. has now applied for the return of his discharge.
The position seems to be as follows:

  1. A 'good' discharge was given to an N.C.O. who by his conduct in the Force did not deserve a 'good' discharge.
  2. The discharge certificate has now in an official manner come into the possession of the issuing authority.
  3. The Regulations are emphatic that there is a special obligation on the Department to place on the discharge certificate a reasonably correct estimate of the character of the soldier, otherwise employers of labour will not place that reliance on the discharge certificate which the Department desires.
  4. The issuing authority would seemingly be justified in withdrawing the incorrect discharge and in substituting a discharge containing a correct assessment of the soldier's character.

There does not appear to be any provision in existing regulations for dealing with the matter, and it is recommended, therefore, that the Attorney-General's Department be asked for an opinion as to whether there would be any objection to a regulation being made to deal with such cases.

A discharge having been granted to a soldier, there is no power to retain or alter that discharge unless authority so to do is given by a regulation.

I know of no regulation which authorises the retaining or altering of a discharge, but, in my opinion, there is power under the Defence Act to make a regulation to provide that when a discharge comes into the possession of the Department, and some authority, such as the Adjutant-General, is satisfied that it is incorrect, he may amend the discharge before returning it to the soldier.

[Vol. 14, p. 467]