Military justice?

by Laura Tingle

In Canberra that day, the Whitlam Government had just been sacked. Angry crowds had gathered at Parliament House.

There were protests about the sacking in the other capitals. At Yarralumla, the Governor-General, Sir John Kerr, worried that the army might have to be called out to quell unrest.

But the mood was very different at the army base in Singleton, NSW on November 11, 1975.

Only two hours after word of the Government's downfall had permeated through Canberra, officers at the base had decided it was news that deserved a celebration.

The base commander rang around local business and community leaders, inviting them to the officers' mess to celebrate Whitlam's downfall.

Allan Warren, then serving as a captain at Singleton, remembers hearing about the celebration.

He was horrified that anybody in the army should contemplate such a political action at a time of such controversy and rang to confirm it was in fact the Government's dismissal.

The mess president said that it was.

"I said 'in that case, I want to register my objection'. He said 'noted', and put down the phone."

Twenty minutes later, the mess president rang Warren's subordinate again to say there would be free drinks in the officers' mess to celebrate 'the passing of supply.'

Warren believes that this trivial incident - his objection to what he considered was an improper celebration by army officers of the downfall of the government - was one which started a process which eventually saw him drummed out of the army in 1981.

He claims the incident sparked a chain of events in which senior officers took a set against him and worked to destroy his career. Pursuing an acknowledgement that what happened to him was unjust for over 15 years, he says the officers were involved in a conspiracy.

But the extensive evidence of Warren's case suggests, depressingly, that he lost his career for little more than the fact that somebody, somewhere, didn't like his attitude.

Two inquiries by the Administrative Appeals Tribunal and one ministerial inquiry held by the former Government agreed that he had been the victim of maladministration by the army.

The AAT notes: "this case is in many ways a tragic one as it concerns the destruction of a career."

The ministerial inquiry into Warren's case reported that:

"The fact of resignation from the Army at the comparatively early age of 34 years, without immediately commencing new employment would cause any reasonably sceptical person considering Warren's career to assume that he had failed in the army."

He has even received a ministerial apology and an offer of compensation from both the Keating and Howard Governments.

The then Minister for Defence Personnel, Gary Punch, wrote to Warren in 1994:

"On behalf of the Department of Defence, I express regret for the unfair Defence administration and I trust that the action now being taken will remedy the situation for you", he wrote.

But Warren can't quite give up the case. From his perspective, his career, and life, have been destroyed. Fault has finally been acknowledged. But he has become utterly frustrated that nothing happens to the individual perpetrators, or to the army. The whole system, he believes, has let him down.

The dilemma in Allan Warren's story is one that particularly afflicts the military - a closed society where the demands of discipline for war tend to dominate the demands of the individual. This can so easily translate into a moral environment where the perceived demands of the institution and its good name outweigh the rights of the individual.

The question always is whether the demands of war preparedness are too readily made an excuse for brutality to the individual.

"I think the army culture, like any culture, tends to exclude the outsider, the person who is different", says Hugh Smith, a lecturer in the Department of Politics at the Australian Defence Force Academy in Canberra.

"In the case of army, I think there are reasons for this. It is an extraordinary profession in which people risk their lives and the lives of other people.

"I think the army ... has always tolerated some eccentricity in people. It accepts people who are great extroverts, doing mad things.

"This certain amount of eccentricity is harmless.

"But when the difference seems to challenge the whole basis of the enterprise, someone just doesn't seem to be part of the club, then inevitably I think there is some pressure to exclude them.

"It happens with the officer corps. It happens within each corps too.

"Each corps - engineers, artillery - has its own identity and culture where people really feel like they belong to one of those corps ..."

But that is the rub of the problem for Warren.

A cultural clash has been identified as one of the causes of his problems - caused by a reorganisation of the army which saw him moved from the engineers corps to the transport corps.

While possibly a more independent thinker than was good for his military career's progress, there has never been any evidence forwarded that Warren was an 'outsider' or a 'bad officer'.

Yet, in the words of the AAT, he has had his career destroyed.

Allan Warren had a strong belief in the military and was ambitious for himself within it.

Fifteen years after leaving the army, he has still got the fit physique and big gait of a military man. He survives on rental income from the house he bought [upon his return from Vietnam].

Unlike many people who feel they have been badly done by by 'the system' he does not seem bitter and twisted in conversation.

However, as the Administrative Appeals Tribunal put it in 1994:

"The Applicant has over the years grown impatient with what he regards as an inability to obtain redress and it seems that at times he has made statements in order to gain attention which, on a more considered reflection, he would not have made."

Warren graduated from the Officer Cadet School at Portsea on December 1966 - just as Australia's participation in the Vietnam war was escalating,and he was subsequently sent there on a tour of duty.

"My life in Vietnam was working on the docks, loading and unloading ships.

"I worked a 12 hour shift while the ships were in - 7pm until 7am.

"I did the night shift and slept for part of the day and read about the war in the newspapers which were weeks old. You got very little information from the system in-country and you caught up with the war from old newspapers."

Warren had originally served with the Royal Australian Engineers, but when the army was reorganised in the early 1970s he was moved to the Royal Australian Corps of Transport (RACT) in June 1973.

The change meant having to learn a new system; he now had to become an expert in road transport whereas his speciality had been transporting the army on water.

The first signs that the events at Singleton on Remembrance Day 1975 would have any repercussions, according to Warren, came a few months after when he reported in to Holsworthy Army Base in Sydney as second in command of the Road Transport Squadron.

He says that when he went for morning tea with his new commanding officer he was told "I know about the incident at Singleton, but you've got nothing to worry about from me because I'm a Labor Party supporter."

According to Warren, the officer went on to suggest a trade off, where Warren would fix up a tangle in the stores accounting system which might influence the officer's promotion in return for giving Warren a good report.

There had been another earlier incident in 1975 which would also have bearing on Warren's future.

Warren told the 1994 ministerial inquiry into his case that "he was removed as Treasurer of the mess at Singleton by Lieutenant Colonel Corboy for bad bookkeeping but was able to prove that the complaint was baseless."

Once again it was a trivial incident. But Warren argues that "(the fact the complaint was baseless) was a huge embarrassment to (Corboy)".

"Then there was this celebration of the dismissal of Whitlam where the base commander had invited community leaders from Singleton to the mess. And of course everybody is silent about the dismissal and there is this terrific loss of face".

Corboy was to repeatedly appear in the story of Warren's career.

And the pattern of unbelievably petty incidents upon which his career would be destroyed would also continue.

But it was when Allan Warren moved to Victoria Barracks in Sydney, in 1977, that his real troubles started.

Warren was posted as a temporary Major under command of a Lieutenant Colonel Gillespie.

In subsequent army reports, Warren documented his first meetings with Gillespie:

"One or two weeks prior to my arrival in January 1977 I paid a customary visit to Lt Col Gillespie. At this first meeting he stated that 'he did not like me', 'he did not want me in the Group' and that he had endeavoured to have my posting changed.

"Lt Col Gillespie at that time did not know me well, nor I he. Nonetheless the working relationship was established on these negative grounds and by and large did not improve."

Warren repeated the allegation during sworn evidence to the AAT in 1993 when the Army was represented and could cross-examine him.

The AAT noted:

"No evidence in rebuttal was adduced by the Respondent (the Department of Defence) consequently the Tribunal accepts that the incident ... did occur."

Warren says now:

"When I pressed him for an explanation, I'll never forget it, he sat down in his chair and says, 'I have it up here' (pointing to his shoulder blaze). 'I don't have to explain myself to you'.

"When I pressed him, he hinted that he was aware of the exchange I'd had in '76 when I reported for duty (at Holsworthy)."

That is, Gillespie was telling Warren that he too knew about Warren's objections to the party celebrating the Whitlam dismissal.

There were linkages between Corboy - who had removed Warren as mess Treasurer, Gillespie - his new commanding officer, and Jacombs - his commanding officer at Holsworthy.

Jacombs, Gillespie and Corboy had come to the Transport Corps out of the now defunct Service Corps, whereas Warren had come from the Engineers.

Corboy was to eventually be posted as the Transport Corps' officer career manager.

"From that position he was the man within the Corps who has access to your whole history of confidential reports" Warren says.

Warren links his growing troubles to Corboy's placement "because the types of criticisms that were coming at me, some of the most damning observations made about me, about this recalcitrant, obstreperous guy, were coming from a Corps direction that I'd never met at this stage."

This Corps director, Colonel Blyth, had also come out of the Service Corps, and Corboy was now working directly under him.

In the army, officers are subject to annual reviews by their commanding officers. The reviews comment on a range of aptitudes like appearance, judgement, and paperwork.

They give an overall opinion section which rated officers from 'not want him' through 'take a chance on him', 'happy to have him' to 'fight to get him'.

The reviews contain a so-called T-Score which marks their performance relative to other officers. One of the problems with the system is that reports flow up the chain of command often without being questioned. A bad review can damage promotion prospects, and ultimately career prospects.

Hugh Smith explains:

"It is hard to disagree with a bad report when it goes up the chain to a superior."

"I don't know how different it is now to 20 years ago but unless the person at the top of the chain has some knowledge of the individual being reported on ... the determining factor in assessing the report will be the fact you've probably appointed the person doing the reporting", Smith says.

"Therefore it must be a good appointment and the judgement is therefore universal.

"It's true that in the reporting system, and it's still like this, if a person gets one bad report in their career it tends to stick with them".

It is Warren's reports from 1976 to 1980 - and how they were manipulated by his commanding officers and their superiors to devastating effect - that form the backbone of his story of victimisation.

In Warren's report for June 30 1976, his commanding officer's opinion is "happy to have him".

Ten months later, and only four months after Warren had gone to work for him, Gillespie in April 1977 was merely prepared to "take a chance on him".

When Salmon QC came to examine these events in 1994 on behalf on the then minister, Gary Punch, he noted that "this was the only report between 1970 and 1980 in which Warren did not receive an assessment of 'readily accepted' or 'gets on quite well'."

The T-score given to Warren for 1976 was 40 but in Gillespie's first report in 1977, it slumped to 28.

Eight months later, Gillespie changed his mind about Warren once more. He now said he was "happy to have him" and recommended him for promotion.

Up the command chain, Warren's acting head of Corps, Colonel Riley, said the report was "an average report on an average officer".

The AAT remarked: "In the light of later comments regarding (Warren) it must be noted that as of December 31 1977 he was described as an average officer who had received an average report and whose Commanding officer was 'happy to have him'."

But ten months later, Gillespie had once agin lowered him opinion of Warren - cutting his score in an October 1978 report to 28 and saying that he was only prepared to "take a change on him".

One of the reasons Gillespie commented unfavourable on Warren in this report was that Warren had declined to join the RACT Association - the Transport Corps' social club.

The Administrative Appeals Tribunal was scathing of Gillespie's rating method, noting that, amongst other things:

"From the evidence, it would appear that the RACT Association was a voluntary association of persons interested in the RACT. There was no evidence adduced to suggest that membership of the association was in any way other than membership of a social organisation. It was certainly not necessary for professional advancement."

When the report was passed on the head of Corps, Colonel Blyth, he remarked that Warren had an "indifferent reporting history although on occasions he has performed reasonable (sic) effectively".

Warren later told the QC conducting a ministerial inquiry into his case, Mr [Ben J] Salmon, that he could not understand how Colonel Blyth could have formed any personal view about him as the two men only met very briefly once during a coffee break in lectures at the RACT Centre at Puckapunyal in 1979.

This report - which largely marked Warren down on the basis that he had failed to join a social club - would eventually be quoted as central evidence in the case to end Warren's military career.

The report was to become the first mentioned in the 'Notice to Show Cause' that was eventually delivered to Warren.

'Notice to Show Cause' is the procedure preceding an officer's expulsion from the army. The officer is given a 'Notice to Show Cause' why his commission should not be terminated.

Yet the bizarre thing was that in the commentary section of the report he was marked as near the middle of the range on each of the [ten] attributes on which an officer was scored, but in the T-score section got a mark which put him in the lowest [1 per cent] of officers of the worn rank of Major

Salmon wrote:

"He is criticised by his (commanding officer) for not joining the Corps association, for being overprotective of his staff, for his dress and manner, showing a lack of dedication and for occasionally debating directions.

"His approach and attitude is criticised by senior reporting officer. It is noteworthy that no example of actual incompetence is mentioned".

After his unhappy experience in the closing months of 1978 in Sydney Warren moved to Melbourne in January 1979 as a staff officer in charge of operations at the Army's Victorian transport headquarters.

However, instead of being put in the job to which he had been appointed - in charge of operations - he was put in an administration job, and was told by his new commanding officer, Lieutenant Colonel Christopherson, as Warren later told the AAT, that he had "come to his attention because of Gillespie's poor reports and that a confidential report had to be written on him in May of that year".

Salmon noted that, six weeks later, on February 22 1979, there was a comment on a memorandum from the Assistant Military Secretary - the Canberra bureaucrat ultimately responsible for personnel matters - which indicates that Warren's transfer to Melbourne was unwelcome.

"... The memorandum on which this appears is date '9/1'. It commences 'Check LtCol Corboy for the story GOC ...' "

Salmon observed that the wording of the memo indicated senior officers were already planning to get Warren out of the Army.

The memo from the assistant military secretary "suggests ... that elements of the Directorate were of the opinion that some action concerning Warren was justified," Salmon argued.

In the confidential report of May 1979, given five months after Warren had come to work for him, his new commanding officer, Colonel Christopherson wrote:

"Major Warren is an intelligent officer who has the ability to perform well. However, his ability is obscured to some extent by his inclination to be very critical of what he sees as shortcomings in the system and by a lack of perception of the effects of his manner on those who work with him ..."

Christopherson said he would "take a chance on him".

Once again, there were no example of incompetence given in the report.

Up the chain of command, there was further comment added. Colonel Blyth once again added to the report:

"It appears to me that Warren's basic problem remains one of attitude not of ability", Blyth wrote.

He added that he had "an almost obstreperous personality."

Despite the negative remarks, the military secretary in Canberra acknowledged to Warren after reviewing the report that there had been an improvement in his performance.

"Your ability is not in question", Warren was told, "though to some extent your attitude is. You still need to demonstrate that your interests coincide with the interests of the Army."

At the end of 1979, Christopherson was replaced by Lieutenant Colonel Emmet, and Warren was put into the job he was first supposed to get a year earlier in charge of operations.

Christopherson had been promoted to a job in Logistics Command under the then General Peter Gration - who was to go on to become Chief of the Defence Force.

This position meant he was technically no longer in the chain of command over Warren, though as a representative of the Transport Corps at headquarters he might be consulted on matters to do with the Corps.

Upon taking command at Warren's unit, Emmet was immediately ordered to get Warren to draft a confidential report on himself, and it seems clear that Emmet had already been 'warned' about Warren.

Warren was to later allege that Emmet had "expressed his frustration to me in that he felt he 'inherited the situation'."

The AAT observed that he records suggest that:

"It is difficult to escape the conclusion that amongst other things, (Warren) was ... getting a reputation as malcontent who wished to challenge 'the system'."

The chain of events from here on in seems to escalate in a bizarre fashion.

Emmet told Warren in his [15 May 1980] letter that "unless there is marked improvement in your performance between now and June it is my intention NOT to recommend your substantive promotion to major and indicate my overall opinion is 'not want him'."

Yet despite this dire warning, the report was hardly a negative one. It says Warren took a "normal amount of interest in his work"; was "as quick to grasp a point as most of his fellow officers"; could "generally be relied upon"; "had a thorough grasp of knowledge relevant to his duties"; wrote "quite a good paper"; got on "quite well with his colleagues" and "his subordinates work quite well for him".

The negatives were that he was "apt to be overconcerned with detail"; had difficulty communicating ideas and while paying some regard to appearance "tends to be careless".

Overall, Emmet said he would "take a change on him".

Emmet then commented:

"Major Warren is an enigma ... I have no doubt that he is genuine in trying to reconcile his beliefs with the overall requirements of the Army but in so doing has created the impression of being a recalcitrant officer who is at odds with authority."

The report was transmitted through the chain of superior officers.

The Victorian military district Commander, Colonel Kendell - who had once shared a dining room mess at Victoria Barracks in Sydney with Warren in 1977 but apart from that did not know him or had no work contact with him - commented:

"Major Warren apparently has the outlook of a hippie. He see his duties as an Army officer quite differently to 98 per cent of other Army officers".

The AAT commented:

"No explanation was given at the time to justify these remarks and none was forthcoming at the hearing of this matter.

"It is condemnation of the Army reporting system that such pejorative remarks can be made without a requirement to justify them."

At the AAT hearing, the Army did not call Kendell to explain his comments.

The AAT judged the comments as "more a condemnation of the officer making them than the officer the subject of the remarks".

The report was next passed to General Gration, who according to the AAT evidence "did not know (Warren), (and therefore) requested the senior (Transport Corps) officer in (the military district) to report and thus Colonel Christopherson was able to make his input into the report.

"That input was entirely unfavourable to (Warren).

"In particular he downgraded the comment under the Overall Opinion to 'not want' and added the following rider:

"... I do not believe that this reporting history justified the retention of this officer in the service. I would be happy to see him posted out of the ... transport and movements organisation."

There were further negative remarks added at the Corps directorate which highlighted the vicious circle now closing on Allan Warren.

The Head of Corps, Colonel Blyth, wrote:

"... His reputation in Corps circles is so poor that he would not to my view receive a terribly objective assessment ... (Emmet) says that Warren's presence in the unit for more than another week or [ten] days will be positively damaging ..."

The AAT wrote:

"... whereas these officers were quite prepared to make damning assertions regarding (Warren), not one scintilla of evidence was then, or now, produced to justify the extravagant use of language adopted by them."

What made the damning reports - and their foreshadowing of the end of Warren's career - even more extraordinary were the way they contrasted with other reports being written about Warren at exactly the same time.

In July 1980, Warren attended a Field Officer's Tactics Course (TAC3).

Contrary to the reports being generated by Warren by his own Corps, his reports from the course were quite good:

"Major Warren worked well throughout the course", his report said.

"His work was generally well prepared and his application to the course was pleasing.

"He displayed a sound knowledge of the organisations, roles and characteristics of the arms and services and his understanding of the principles involved ensured that he benefited from the course.

"His ability to apply the principles in a logical manner generally led him to produce satisfactory solutions to tactical and administrative problems.

"He showed that he was able to logically and clearly explain his solutions and his arguments were generally well-structured and sound."

At the 1993 AAT hearings, the Tribunal found that the acting chief of general staff, Major General Carter, "attempted to downplay these comments and suggested that somehow they condemned with faint praise".

The Tribunal responded that it "does not accept that rationalisation and regards the course report as saying what it means.

"If the plain words of the report are accepted then it can be classified as a good one and in compete contrast to the June 1980 report ... being raised by (Warren's) superior officers in RACT".

The damning June 1980 report prepared in the Transport Corps prompted the Military Secretary to ask whether Warren should be called upon to show cause why he should not be dismissed from the service.

Army Legal Services, when asked for advice, raised the question of why an alternative course should not be taken of simply reverting Warren's rank to Captain - since he had only held the rank of Major temporarily.

The army failed to explain why it did not pursue this alternative in subsequent AAT hearings, prompting the Tribunal to ask why:

"If, as claimed, (Warren) was failing to attain the standards of competence of an officer of the worn rank of Major, surely the correct procedure would be to have reverted (him) to his substantive rank of Captain and judge his performance in that rank."

But in the Transport Corps, Warren's superiors were trying to expedite the end of his career.

Emmet wrote to the Military District Commander, (now Brigadier) Kendell in September 1980, claiming Warren's performance had deteriorated and that he considered him a "negative asset".

Kendell - [under whom Warren had never worked] but said he had the attitude of a 'hippie' - then wrote to Gration:

"I believe the time has come when the Army make a decision on whether Major Warren's continued service is in the best interests of the service. My own experience and what I have read of others, indicates it is not.

"I suggest that (General Gration) recommends to (the Chief of Army personnel) that Major Warren be asked to show cause why his appointment in the (Australian Regular Army) should not be terminated and that if he fails to do so, then his appointment be terminated early in January 1981."

Kendell told Gration he would "be prepared to employ Major Warren at HQ 3MD on a project where his performance could be monitored regularly" rather than in his current job under Emmet.

But Gration wrote back on October 6 urging caution:

"The course of action you propose is not appropriate at this time, and Major Warren is to remain in his present appointment for the time being."

Gration told Kendell that Warren's commanding officer, Lieutenant Colonel Emmet was to submit a further confidential report on him in December.

"Further action will be considered on receipt of this Report" Gration wrote.

Despite Gration's warning that Warren should be left where he was, two weeks later on October 21, Warren was given a draft letter from the military secretary in Canberra, Brigadier Hooper, which said that "successive reporting officers have indicated that your performance suffers through your attitude".

"... If no sustainable improvement in your performance is evident I shall recommend to the chief of personnel that he ask you to show cause why your commission should not be terminated".

Emmet prepared a new confidential report on Warren in December, and, curiously, sent a draft of the report, along with a proposed covering letter, to Christopherson.

Once again, Christopherson had no official role in the line of command which should have been determining Warren's future, and it is worth noting that General Gration did not subsequently invite him to have any role in assessing the December report.

In the covering letter, Emmet stated:

"... I consider that by failing to post Major Warren away from an area in which, as instanced as history of poor reports, he has performed unsatisfactorily, the Army has not given him a real change to vindicate himself. I believe it is important that this officer be given a final chance to redeem himself. I do not believe that he will do this in a Corps position where his track record is too well known."

The AAT argued that "the proposed covering letter by Emmet would have postponed the inevitable decision as to whether (Warren) was to stay or go. Whether he received further advice from Col Christopherson cannot be ascertained.

"Suffice it to say that the actual covering letter forwarded by Lt Col Emmet with the final report did not contain the passages quoted above."

Warren was to later allege when fighting to keep his career that "prior to writing the December 1980 report Lt Colonel Emmet advised me that he had to consult with his superiors.

"I assume he meant Brigadier Kendell or Col Christopherson or both.

"After I received the December report, ... Emmet told me that he had formally advised Brigadier Kendell, amongst other things, that he believed that my confidential report was as much a reflection on the reporting officers as the officer being reported on.

"My assessment of these statements is that Lt Col Emmet wanted to absolve himself to me of any individual responsibility for the writing of the December report."

Emmet's overall opinion of Warren in the December 1980 report was that 'did not want him', even though he had increased Warren's marks in some areas. He said Warren's "technical knowledge is good but overall knowledge of the Army at large is poor."

The AAT highlighted the contrast between this last remark and the report from the training course which recorded him as having a sound knowledge of the organisation's roles and characteristics of the arms and services.

Gration commented:

"I have no reason to disagree with (Kendell's) comments. I believe Warren is not suited to the Army and recommend that he should be asked to show cause why his commission should not be terminated."

In February 1981, Allan Warren was called upon to show cause why his appointment as an officer in the military forces should not be terminated.

In his response, Warren asserted that he was "worthy and competent to hold field rank and that my attitudes and abilities are consistent with those expected of a professional army officer."

He reported Gillespie's threats over the RACT and the controversy over his Living Out allowance.

"Since writing the June 1979 report, Colonel Christopherson has been promoted to (a position which makes him) my current Commanding Officer's immediate superior within the Corps chain of command.

"I assume that it must have been quite disconcerting for Lt Col Emmet to write confidential reports on me, to be received by Col Christopherson as his superior in the Corps chain of command."

Despite his protests the Chief of Personnel ruled that Warren had not made a case to stop his commission being terminated.

Warren resigned from the Army on March 24, 1981.

Both the AAT and the Salmon report declined to find that there has been a conspiracy. "That is to say", the AAT said, "any agreement between two or more officers to injure the Applicant by improper means against him".

However, "... it would have been naive to suggest that Lieutenant Colonel Emmet was not fully aware of the attitude of both Kendell and Christopherson towards (Warren) and that those officers thought that the Army would be better off if (Warren) were no longer part of it.

"The Tribunal is concerned that Lieutenant Colonel Emmet does seem to have had changes of opinion regarding (Warren) with no apparent cause it is a fair inference that he would have been well aware of the attitude of his superiors to (Warren)."

Warren has pursued his case for redress since 1981 through letters and appeals to the Army, the AAT, to various Defence Ministers, various Prime Ministers and Governor-General.

His persistence has seen the AAT direct the Army to amend his army records, and the Salmon report produce an acknowledgement of unfair defence administration, a recommendation for financial recompense and an apology for his treatment from the Government of the day.

Needless to say, in a new era of financial rectitude Gary Punch's compensation offer of $72,000 has been marked down to just $68,000 by his successor, Bronwyn Bishop.

But Allen Warren's question is: how can there be no protection for individuals - either from within the army or its political masters from individual persecution?