Friday, July 10, 2009
Interim Report to Congress
Prepared by the Office of the Assistant Secretary of Defense, Force Management Policy
Interim Report to Congress
Payments to Certain Persons Captured and Interned by North Vietnam
commonly referred to as the Vietnamese Commandos
Section 657 of the National Defense Authorization Act for Fiscal Year 1997 (Public Law 104-201) requires the Secretary of Defense to report to Congress regarding the payment of claims by the Department of Defense (DoD) to certain persons captured and interned by North Vietnam. These persons are commonly referred to as the ‘Vietnamese Commandos.’ This provides an initial status report. A final report will be provided when payments have been completed.
Section 657 authorizes payments to a person who was captured and incarcerated by the Democratic Republic of Vietnam as a result of participation in operations conducted under OPLAN 34A or its predecessor. It also authorizes payments to a person who served as a Vietnamese operative pursuant to OPLAN 35, was captured and incarcerated by North Vietnamese forces as a result of OPLAN 35 opera tions in Laos or along the Lao-Vietnamese border, and remained in captivity after 1973. Should the Commando no longer be living, payments are authorized to the surviving spouse, and if none, to the surviving children in equal shares.
Payments are to be in the amount of $40,000. If the claimant demonstrates that the period of confinement was greater than 20 years, the Secretary of Defense may pay an additional $2000 per year up to a maximum of $50,000. $20 million was authorized to be appropriated for payments under this section.
The Secretary of Defense prescribed regulations including procedures for submitting claims. The regulations establish guidelines regarding appropriate documentation for establishing eligibility as determined in consultation with the heads of other agencies of the Government involved in OPLAN 34A, its predecessor or OPLAN 35. By law, claims must be filed within 18 months of the effective date of the regulations and a claimant’s eligibility must be determined within 18 months after receipt of the claim.
All determinations by the Secretary are final and conclusive. The law prescribes that claimants have no right to judicial review, and such review is specifically precluded. The acceptance of payments "shall be=2 0in full satisfaction of all claims by or on behalf of that individual against the United States arising from operations under OPLAN 34A or its predecessor or OPLAN 35."
With regard to attorney fees, the law specifically states that "notwithstanding any contract, the representative of a person may not receive, for services rendered in conjunction with the claim, … more than 10 percent of a payment made under this section."
The Defense Appropriations Act for Fiscal Year 1997 did not appropriate funds for payments in accordance with Section 657 of the Authorization Act. However, Congress included appropriations for this section in a bill providing supplemental appropriations for conducting operations in Bosnia. This bill was signed into law June 25th, 1997, appropriating $20 million for payment to Vietnamese Commandos.
On May 15, 1997, the Department approved regulations to establish procedures for receipt of claims and payment to Vietnamese Commandos. On June 25, 1997, the Department published in the Fede ral Register a Privacy Act Notice in accordance with 5 USC 552a, allowing for Privacy Act protection of associated records. On June 30, 1997, the Department published in the Federal Register a System of Records in accordance with OMB Circular A-130, allowing for formal claims receipt.
On July 25, 1997, the regulations were formally published in the Federal Register as 32 CFR Part 270, "Compensation of Certain Former Operatives incarcerated by the Democratic Republic of Vietnam," effective May 15, 1997. These regulations prescribe in detail the membership of the Commission, henceforth called the Vietnamese Commandos Compensation Commission (VCCC), and the functions of the VCCC Support Staff. The regulations prescribe the standards and verification of eligibility of applicants, payment procedures, appeals procedures, and a complete application.
The complete regulations are at Appendix A of this report. Some key points with regard to the regulations are highlighted below:
The regulations are effective May 15, 1997. Hence, in accordance with Public Law 104-201, all claims must be submitted by November 15, 1998 (18 months after establishing associated Department regulations). The Commission has another 18 months to adjudicate claims, until May 1 5, 2000. However, the commission is adjudicating claims much faster than the 18 months allowed and expects its work to be completed by the end of 1999.
On July 1, 1997, the Secretary of the Army established the VCCC Support Staff. The staff consists of a staff director, a contract staff advisor, three military staff analysts, two Vietnamese translators, a staff investigator and an administrative assistant. The staff members have become experts on the Vietnamese Commandos and are capable of processing and investigating 60 to 70 claims per month. The VCCC Support Staff makes recommendations to the Commission, which is responsible for actually adjudicating the eligibility of each claimant.
The standards for verification of eligibility were established so that information presented to the commission indicates whether "the applicant is more likely than not to be eligible for payment." Rather than requiring personal appearances, the regulations call for a notarized application, signed affidavits and various readily available identification documents. Upon learning that notary service was unavailable or available only at great expense for applicants living in Vietnam, the rules were amended prior to final publication waiving the notary requirement "in exceptional circumstances."
While Section 657 of Public Law 104-201 established that claimants have no right to judicial review, the regulations do allow for an appeal process within DoD and establish specific appeal procedures for filing petitions for reconsideration.
Appendix A to 32 CFR Part 270 is a complete Application for Compensation for Vietnamese Commandos. The Support Staff has subsequently developed a bilingual application in both English and Vietnamese. The bilingual application is made available on request, is sent to all applicants applying directly from Vietnam and has been provided to the US Embassy in Vietnam.
IV. SUMMARY OF PROGRESS TO DATE
The VCCC Support Staff began processing claims in September 1997. The Commission reviewed the first 20 claims in November 1997 and made payments on 16 approved claims by the end of November. The Commission approved 20 more claims in December and made payments before the end of the month. The VCCC meets monthly and now adjudicates 60 to 70 claims per month. The following is the status of claims presented to the VCCC as of September 18, 1998:
Number of claims received: 880
Number of claims closed: 586
Average processing time: 93 days
Number of claims received from:
Total approved for payment: $9,969,500
Total paid to claimants: $3,024,000
Total held in abeyance: $6,945,500
Petitions for Reconsideration: 35
Commission denial affirmed: 35
SUMMARY OF SIGNIFICANT ISSUES
Ineligible Claims from Vietnam
Beginning in January 1998, the Commission began receiving a large number of claims from applicants in Vietnam who were clearly not former commandos. These applicants were mostly former Army of the Republic of Vietnam (ARVN) soldiers who were misled into believing the United States was making broad-based payments to former Vietnamese soldiers. Broadcasts over BBC radio based on incomplete information were partially responsible for this as well as an apparent "cottage industry" by which local Vietnamese, for a fee, processed applications, whether or not the applicant had any potential for qualifying. The VCCC and Support Staff have subsequently sent clarifying information in English and Vietnamese to the US Embassy in Vietnam, arranged for multiple broadcasts on Voice of America outlining qualifying criteria, and promptly provided specific disqualifying information in Vietnamese to all applicants whose claims were denied. No netheless, the Commission is now adjudicating approximately two claim denials for every claim approved.
Section 657 specifically limits attorney fees to 10% of payments made. In early 1998, the Department received a number of inquiries with regard to attorney fees. A complaint was filed with the DoD Inspector General (IG) regarding an attorney who was charging his clients fees in excess of 10%. On March 12, 1998, the Assistant Secretary of Defense for Force Management Policy directed that payments be held in abeyance pending resolution of this question of attorneys charging claimants excessive fees in violation of law. Efforts to resolve the issue directly with the attorney involved have not been successful. On July 17, 1998, the issue was referred by the Department of Justice to the United States Court of Federal Claims for resolution.
Section 658 of the FY1999 Defense Authorization Bill provides that "notwithstanding any prior agreement (including a power of attorney) to the contrary, the actual disbursement" of a payment under this section may be made only to the person who is eligible for payment. Passage of this amendment in the Authorization Bill would provide the Department a possible alternative to waiting for complet ion of the judicial process before being able to resume payments.
When the Department published its regulations in May 1997, one attorney represented the vast majority of the commandos. A few other attorneys have since represented a handful of additional claimants. However, one attorney has presented the VCCC Support Staff with over 80 powers of attorney switching claimants to himself from the original attorney. Some of these claimants’ applications had already been investigated, adjudicated and approved for payment. The original attorney has asked the Department in writing to defer action on these applications until such time as the validity of representation can be adjudicated in court. Section 658 of the FY1999 Defense Authorization Bill provides a possible alternative to waiting for completion of the judicial process before being able to resume payments.
Section 657 states that payments "under this section shall be in full satisfaction of all claims by or on behalf of that individual against the United States arising from oper ations under OPLAN 34A or its predecessor or OPLAN 35."
Nonetheless, the original lawsuit (April 1995) against the United States Government on behalf of the commandos remains open in the United States Court of Federal Claims.
In April 1998, the attorney representing commandos in the original 1995 lawsuit filed suit against a second attorney in the United States District Court for the District of Columbia. This suit charges the second attorney with interference with preexisting contractual client relationships. The attorney filing the lawsuit asked the Department to defer payment on disputed applications until such time as the validity of representation can be adjudicated in court. The VCCC Support Staff has received three subpoenas in conjunction with this suit.
In June 1998, the attorney representing commandos in the original 1995 lawsuit filed a lawsuit in the United States District Court, District of Massachusetts seeking Veterans benefits for the commandos similar to those granted to members of the Armed Forces of the United States.
In August 1998, the attorney representing commandos in the original 1995 lawsuit filed a lawsuit in the United States District Court, Southern District of Florida, naming the Assistant Secretary of Defense for Force Management Policy, the Chairman of the VCCC and the United States as defendants. This lawsuit involves the attorney fee issue referred in July 1998 by the Department of Justice to the United States Court of Federal Claims for resolution