Vietnamese Claims (Claim of Mr. Gia Huu Pham and related cases

Vietnamese Claims (Claim of Mr. Gia Huu Pham and related cases BNUMBER: B-270008-O.M. DATE: November 20, 1995 TITLE: Vietnamese Claims (Claim of Mr. Gia Huu Pham and related cases ********************************************************************** Date: November 20, 1995 To: Director of Adjudication, PTLD-Sharon S. Green From: Associate General Counsel-Lowell Dodge Subject:Vietnamese Claims (Claim of Mr. Gia Huu Pham and related cases)-B-270008-O.M. This is in response to your request for guidance in your memorandum to the General Counsel dated September 29, 1995, concerning several pay claims of former foreign national employees arising from their service to the United States in the former Republic of Vietnam in 1975. In many cases, these former employees were unable to leave the Socialist Republic of Vietnam until relatively recently and have been lawfully admitted to the United States under the Department of State's Orderly Departure Program. They now seek final compensation, usually for one or two pay periods in April 1975, severance pay, or other benefits. In one case you present, copies of official National Archives and Records Administration records show that Mr. Gia Huu Pham was employed by the United States government from November 13, 1961, until the Navy separated him by a reduction-in-force action, effective April 30, 1975. However, while he was at work on April 28, 1975, acting under the orders of his last supervisor, Mr. John F. Smekal, he was struck by a stray bullet and had to be hospitalized. By the time he recovered, the People's Democratic Republic of Vietnam (now the Socialist Republic of Vietnam) had taken control, and he alleges that he did not receive compensation for the last pay period and severance pay to which he was then legally entitled. After imprisonment and other difficulties, he was lawfully admitted to the United States under the Department of State's Orderly Departure Program in October 1991. Mr. Pham filed his claim with the agency by letter dated February 1, 1992. The agency denied the claim on the ground it was barred by the applicable statute of limitations. Summary As a general rule, claims arising from the evacuation of Vietnam in 1975 are barred under the 6-year statute of limitations in 31 U.S.C.  3702(b). One exception to this rule is established by law.[1] To meet the exception, an employee must show: (1) that a payment that would otherwise have been transmitted to the employee was withheld under 31 C.F.R.  211.1 (1994); and (2) that either (a) the payment was placed in a "special deposit account" and held in trust for the employee (31 U.S.C.  3329(b)(4)), or (b) if the alternative procedures described in the Treasury Financial Manual (Volume 1, Section 4-2085.10) were followed, the amount of the payment has been established as a liability on the books of the employing agency for the benefit of the employee. The requirements for meeting this exception are to be strictly construed. Only if these requirements are met may the employing agency entertain such a claim. Explanation Title 31 U.S.C.  3329(a) (1988) requires the Secretary of the Treasury to prohibit any checks which are, or will be drawn on public money from being sent to an individual payee in a foreign country if the Secretary determines that the postal, transportation, banking, or other conditions in that country do not reasonably ensure that the payee will receive the check and be able to negotiate it for full value.[2] The statute provides a mechanism to accomplish its objectives. See 31 U.S.C.  3329(b)(3) (1988). It also authorizes the Secretary of the Treasury to "otherwise direct," that is, to establish alternate mechanisms. This the Secretary has done. It is the alternate method that is relevant here. We proceed to briefly describe it. Under 31 U.S.C.  3329(b)(3) (1988) the Secretary of the Treasury has promulgated regulations which "otherwise direct" the drawer i.e., a government department or agency, as to what to do with money owed to payees in restricted foreign countries. By Treasury Department Circular No. 655, revised November 14, 1964, the Secretary of the Treasury authorized the second method, and the first method was superseded. Our decision, Xie Qianhao, 70 Comp. Gen. 612, 614 (1991) describes the alternate method as follows. "In lieu of writing checks payable to individuals in the restricted countries designated by the Secretary of the Treasury (and set forth at 31 C.F.R.  211) and depositing them in the special deposit trust fund authorized by 31 U.S.C.  3329, the Treasury Department has adopted an alternative procedure that is less burdensome administratively but which accomplishes the same objective as the statute.