[Federal Register Volume 63, Number 237 (Thursday, December 10, 1998)]
[Rules and Regulations]
[Pages 68194-68197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32755]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 270

RIN 0790-AG67


Compensation of Certain Former Operatives Incarcerated by the 
Democratic Republic of Vietnam

AGENCY: Office of Under Secretary of Defense for Personnel and 
Readiness, DoD.

ACTION: Interim final rule.

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SUMMARY: This rule amends part 270 to reflect changes necessary as a 
result of new language in Section 658 of the FY99 National Defense 
Authorization Act. Section 658 expands the field of beneficiaries of 
the Vietnamese Commandos Compensation Commission to parents and 
siblings of deceased Commandos. It also adds words ``notwithstanding 
any agreement (including a power of attorney) to the contrary, the 
actual disbursement'' must be made directly to the person who is 
eligible for the payment. This rule also amends part 270 to reflect 
necessary technical changes to accommodate the new language.

EFFECTIVE DATE: This rule is effective October 17, 1998. Comments are 
requested by February 8, 1999.

ADDRESSES: Forward comments to Commission on Compensation, Office of 
the Secretary of Defense, 4000 Defense Pentagon, Washington, DC 20301-
4000.

FOR FURTHER INFORMATION CONTACT: Mr. Chuck Witschonke, (703) 693-1059 
or LTC Frank Hudson, (703) 588-6570.

SUPPLEMENTARY INFORMATION:

Executive Order 12866, ``Regulatory Planning and Review''

    It has been determined that this is not a significant rule as 
defined under section 3(f)(1) through 3(f)(4) of Executive Order 12866.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been determined that this rule will not have a significant 
economic impact on a substantial number of small entities because it 
affects only a limited

[[Page 68195]]

number of Vietnamese Commandos who were incarcerated in North Vietnam, 
and as such, does not affect small entities.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 
35)

    It has been certified that this rule does not impose reporting and 
recordkeeping requirements under the Paperwork Reduction Act of 1995. 
The reporting and recordkeeping requirements are exempt from this Act, 
as it directly involves active litigation in which the U.S. is a party.
    The specific exemption from the Paperwork Reduction Act is found in 
5 CFR Part 1320. The information collection in this interim final rule 
is exempt from OMB approval under Sec. 1320.4(a)(2), ``Controlling 
Paperwork Burdens on the Public; Regulatory Changes Reflecting 
Recodification of the Paperwork Reduction Act''.

Public Law 104-4, ``Unfunded Mandates Report Act of 1995 (UMRA)''

    It has been determined that this rule does not contain a federal 
mandate that may result in expenditures of $100 million or more for 
state, local, and tribal governments, in the aggregate, or the private 
sector in any one year.

List of Subjects in 32 CFR Part 270

    Military personnel, Payments, Prisoners of war, Vietnam.

    Accordingly, 32 CFR part 270 is amended to read as follows:

PART 270--[AMENDED]

    1. The authority citation for 32 CFR part 270 continues to read as 
follows:

    Authority: Sec. 657, Pub. L. 104-201, 110 Stat. 2422.

    2. Section 270.2, ``Definitions,'' is amended by redesignating 
paragraphs (c), (d), (e), (f), (g), (h), (i), (j), and (k) as 
paragraphs (e), (f), (g), (h), (i), (j), (k), (l), and (m), 
respectively, and by adding paragraphs (c) and (d) to read as follows:


Sec. 270.2  Definitions.

* * * * *
    (c) Parents of an eligible person. Natural parents, adoptive 
parents, or step parents of a deceased person described in Part A of 
appendix A to this part. (Step parents must show that they established 
a parent-child relationship with the deceased person described in Part 
A of appendix A to this part.)
    (d) Siblings by blood of an eligible person. Siblings related by 
blood to a deceased person described in Part A of appendix A to this 
part, including half-brothers and half-sisters.
* * * * *
    3. Section 270.6, ``Standards of eligibility,'' is amended by 
removing the period and adding ``; or'' at the end of paragraph (b)(2), 
and adding paragraphs (b)(3) and (b)(4) to read as follows:


Sec. 270.6  Standards of eligibility.

* * * * *
    (b) * * *
    (3) If there is no surviving spouse of an eligible person and no 
surviving children of an eligible person, to the surviving parents of 
an eligible person, in equal shares (step parents take equal shares the 
same as natural parents); or
    (4) If there is no surviving spouse of an eligible person, no 
surviving children of an eligible person, and no surviving parents of 
an eligible person, to the surviving siblings of an eligible person, in 
equal shares. (Half siblings take equal shares in the same manner as 
full siblings.)
* * * * *
    4. Section 270.8, ``Authorization of payment,'' second sentence, is 
amended by revising the words ``spouse or children'' to read ``spouse, 
children, parents, or siblings''.
    5. Section 270.11, ``Limitation on disbursements,'' is revised to 
read as follows:


Sec. 270.11  Limitation on disbursement.

    Notwithstanding any agreement (including a power of attorney) to 
the contrary, the Commission must disburse a payment under this part 
only to the person who is eligible for the payment, i.e., the commando, 
his surviving spouse, children, parents, or siblings. The Commission 
may, in its discretion, require the person who is eligible for the 
payment to appear at any designated Defense Finance Accounting Service 
disbursement office in the United States to receive payment. The 
Commission may, in its discretion, coordinate with other U.S. 
governmental agencies to facilitate disbursement of payments to persons 
eligible for payments who reside outside the United States. If an 
eligible person makes a written request that payment be made at an 
alternate location or in an alternate manner, the Commission may, in 
its discretion, grant such request, provided that the actual 
disbursement of the payment (i.e., the physical delivery of the 
payment) is made only to the eligible person. The Commission will not 
disburse payment to any person other than an eligible person, 
notwithstanding any written request, assignment of rights, power of 
attorney, or other agreement. In the case of an application authorized 
for payment but not disbursed as a result of the foregoing, the 
Secretary will hold the funds in trust for the person authorized to 
receive payment in an interest bearing account until such time as the 
person complies with the conditions for disbursement set out in this 
part.
    6. Appendix A to Part 270--Application for Compensation of 
Vietnamese Commandos, is amended as follows:
    a. The Privacy Act Statement, Principal Purpose, is revised to read 
as follows:

Appendix A to Part 270--Application for Compensation of Vietnamese 
Commandos

* * * * *
    Principal Purpose: To evaluate applications for cash payments 
for those individuals, or their surviving spouse, children, parents, 
or siblings, who were captured and incarcerated by North Vietnam as 
a result of participating in specified joint United States-South 
Vietnamese operations.
* * * * *
    b. The last sentence of the Privacy Act Statement is revised to 
read as follows:
* * * * *
    * * * This application shall be executed by the person applying 
for eligibility, or his surviving spouse, children, parents, or 
siblings, or designated representatives of such persons.
* * * * *
    c. The introductory text to Part B is revised to read as follows:
* * * * *
    Part B--In addition to PART A, above, any applicant who is a 
surviving spouse, child, parent, or sibling by blood of a deceased 
commando must complete Part B, below, with information on 
themselves.
* * * * *
    d. Paragraphs (10) and (11) of Part B are redesignated as (12) and 
(13), respectively.
    e. Part B is amended to add paragraphs (10) and (11), to read as 
follows:
* * * * *
    (10) If you are a surviving parent, the deceased person 
described in PART A has no surviving spouse or children, list the 
name and address of the other parent of the deceased person.
    (11) If you are a surviving sibling, the deceased person 
described in Part A has no surviving spouse, children, or parents, 
list the names and addresses of all other siblings of the deceased 
person, including half-brothers or half-sisters. Provide the date of 
death for any who are deceased.
* * * * *
    f. The heading ``For Surviving Spouse or Child of Deceased Commando 
(OPLAN 34A or Predecessor Operations-Missions Into North Vietnam)'' is

[[Page 68196]]

revised to read ``For Surviving Spouse, Child, Parent, or Sibling of 
Deceased Commando (OPLAN 34A or Predecessor Operations-Missions Into 
North Vietnam).''
    g. The heading ``For Surviving Spouse or Child of Deceased Commando 
(OP 35 Units-Missions Into Laos or Along the Viet-Lao Border)'' is 
revised to read ``For Surviving Spouse, Child, Parent, or Sibling of 
Deceased Commando (OP 35 Units-Missions Into Laos or Along the Viet-Lao 
Border).''
    h. The heading ``For a Spouse or Surviving Child of a Deceased 
Person Described in Part A, Above'' is revised to read ``For a 
Surviving Spouse, Child, Parent, or Sibling of a Deceased Person 
Described in Part A, Above.''
    i. Add new sections ``For the Surviving Parent'' and ``For the 
Surviving Sibling by Blood'' after ``For the Surviving Children,'' 
paragraph (12)(d), as follows:
* * * * *

For the Surviving Parent

    In addition to documents described in Part C items (1) through 
(8), above, each surviving parent should submit the following:
    (13) An affidavit certifying that the deceased individual 
described in Part A, above, has no surviving spouse.
    (a) In addition to the above affidavit, if the individual 
described in Part A, above, was divorced at the time of his death, a 
copy of the divorce decree from his spouse shall be submitted as 
additional proof that he has no surviving spouse.
    (b) In addition to the above affidavit, if the individual 
described in Part A, above, had been married at some point prior to 
his death, and his spouse pre-deceased him, one of the following 
documents as evidence of the death of the spouse of the individual 
described in Part A, above, shall be submitted as additional proof 
that he has no surviving spouse:
    (i) A certified copy of extract from the public records of 
death, coroner's report of death, or verdict of a coroner's jury;
    (ii) A certificate by the custodian of the public record of 
death;
    (iii) A statement of the funeral director or attending physician 
or intern of the institution where death occurred;
    (iv) A certified copy, or extract from an official report or 
finding of death made by an agency or department of the United 
States government; or
    (v) If death occurred outside the United States, an official 
report of death by a United States Consul or other employee of the 
State Department, or a copy of public record of death in the foreign 
country.
    (vi) If you cannot obtain any of the above evidence of death of 
the spouse of the deceased individual described in Part A, above, 
you must submit other convincing evidence, such as signed sworn 
statements of two or more persons with personal knowledge of the 
death, giving the place, date, and cause of death.
    (14) One of the following documents as evidence of the death of 
all of the children (if any), of the deceased individual described 
in Part A, above:
    (a) A certified copy of extract from the public records of 
death, coroner's report of death, or verdict of a coroner's jury;
    (b) A certificate by the custodian of the public record of 
death;
    (c) A statement of the funeral director are attending physician 
or intern of the institution where death occurred;
    (d) A certified copy, or extract from an official report or 
finding of death made by an agency or department of the United 
States government; or
    (e) If death occurred o8tside the United States, an official 
report of death by a United States Consul or other employee of the 
State Department, or a copy of public record of death in the foreign 
country.
    (f) If you cannot obtain any of the above evidence of death of 
all of the children of the deceased individual described in Part A, 
above, you must submit other convincing evidence, such as signed 
sworn statements of two or more persons with personal knowledge of 
the death, giving the place, date, and cause of death.
    (15) One document as evidence of your relationship to your child 
(the deceased person described in Part A, above), as follows:
    If a Natural Parent:
    (a) Birth certificate showing that the deceased person was your 
child.
    (b) If the birth certificate does not show the deceased person 
as your child, a certified copy of:
    (i) An acknowledgement in writing signed by the deceased person;
    (ii) The public record of birth or a religious record showing 
that the deceased person was named as your child.
    (iii) Public records, such as records of school or welfare 
agencies, which show that the deceased individual was named as your 
child; or
    (iv) Other convincing evidence, such as signed, sworn statements 
of two or more persons who know that the deceased person was your 
child.
    If An Adoptive Parent:
    An adoptive parent must submit a certified copy of the decree of 
adoption. If the adoption took place outside of the United States 
and there is no decree of adoption, other convincing evidence must 
be submitted, such as signed, sworn statements of two or more 
persons with personal knowledge of the adoptive relationship, or a 
government official who can attest to the adoptive relationship.
    If a Step-Parent:
    Submit all three of the following documents as evidence of the 
step-parent relationship:
    (a) One document as evidence of birth of the deceased person to 
the natural parent, or other convincing evidence that reasonably 
supports the existence of a parent-child relationship between the 
deceased person and the natural parent (see ``If a Natural Parent,'' 
above).
    (b) One document as evidence that you had established a parent-
child relationship with the deceased person; and
    (c) One of the following documents as evidence that you were 
married to the natural parent of the deceased person:
    (i) A copy of the public records of marriage, certified or 
attested, or an abstract of the public records, containing 
sufficient information to identify the parties, the date and place 
of marriage, and the number of prior marriages by either party if 
shown on the official record, issued by the officer having custody 
of the record or other public official authorized to certify the 
record, or a certified copy of the religious record of marriage;
    (ii) An official report from a public agency as to a marriage 
which occurred while either parent was employed by such agency;
    (iii) An affidavit of the clergyman or magistrate who 
officiated;
    (iv) The certified copy of a certificate of marriage attested to 
by the custodian of the records;
    (v) The affidavits of two or more eyewitnesses to the ceremony; 
or
    (vi) In jurisdictions where ``common law'' marriages are 
recognized, an affidavit by the parent setting forth all of the 
facts and circumstances concerning the alleged marriage, such as the 
agreement between the parties at the beginning of their 
cohabitation, places and dates of residences, and whether children 
were born as the result of the relationship. This evidence should be 
supplemented by affidavits from two or more persons who know as a 
result of personal observation the reputed relationship which 
existed between the parties to the alleged marriage, including the 
period of cohabitation, places of residences, whether the parties 
held themselves out as husband and wife and whether they were 
generally accepted as such in the communities in which they lived.
    (vii) If you cannot obtain any of the above evidence of your 
marriage to the natural parent, you must submit any other evidence 
that would reasonably support a belief that a valid marriage 
actually existed.
    (16) In addition, submit the following documents about yourself:
    (a) Identification. A document with your current legal name and 
address plus two or more sworn affidavits from individuals having 
personal knowledge of your identity (these should be submitted in 
addition to the document with current name and address).
    (b) One document of date of birth. A Birth certificate, or if 
unavailable, other proof of birth (e.g., passport).
    (c) One document of name change. If your current legal name is 
the same as that shown on documents attesting to your birth, this 
section does not apply. Persons whose current legal name is 
different than that used on such documents should submit a document 
or affidavit to corroborate the name change.
    (d) One document of evidence of guardianship. If you are 
executing this document as the guardian of the person identified as 
a surviving parent of the deceased person described in Part A, 
above, you must submit evidence of your authority. If you are a 
legally-appointed guardian, submit a certificate executed by the 
proper official of the court appointment. If you are

[[Page 68197]]

not such a legally-appointed guardian, submit an affidavit 
describing your relationship to the parent and the extent to which 
you are responsible for the care of the parent, or your position as 
an officer of the institution in which the parent is 
institutionalized.

For the Surviving Sibling by Blood

    In addition to documents described in Part C items (1) through 
(8), above, each surviving sibling by blood should submit the 
following:
    (17) An affidavit certifying that the deceased individual 
described in Part A, above, has no surviving spouse.
    (a) In addition to the above affidavit, If the individual 
described in Part A, above, was divorced at the time of his death, a 
copy of the divorce decree from his spouse shall be submitted as 
additional proof that he has no surviving spouse.
    (b) In addition to the above affidavit, If the individual 
described in Part A, above, had been married at some point prior to 
his death, and his spouse pre-deceased him, one of the following 
documents as evidence of the death of the spouse of the deceased 
individual described in Part A, above, shall be submitted as 
additional proof that he has no surviving spouse:
    (i) A certified copy of extract from the public records of 
death, coroner's report of death, or verdict of a coroner's jury;
    (ii) A certificate by the custodian of the public record of 
death;
    (iii) A statement of the funeral director or attending physician 
or intern of the institution where death occurred;
    (iv) A certified copy, or extract from an official report or 
finding of death made by an agency or department of the United 
States government; or
    (v) If death occurred outside the United States, an official 
report of death by a United States Consul or other employee of the 
State Department, or a copy of public record of death in the foreign 
country.
    (vi) If you cannot obtain any of the above evidence of death of 
the spouse of the deceased individual described in Part A, above, 
you must submit other convincing evidence, such as signed sworn 
statements of two or more persons with personal knowledge of the 
death, giving the place, date, and cause of death.
    (18) One of the following documents as evidence of the death of 
all of the children (if any), of the deceased individual described 
in Part A, above:
    (a) A certified copy of extract from the public records of 
death, coroner's report of death, or verdict of a coroner's jury;
    (b) A certificate by the custodian of the public record of 
death;
    (c) A statement of the funeral director or attending physician 
or intern of the institution where death occurred;
    (d) A certified copy, or extract from an official report or 
finding of death made by an agency or department of the United 
States government; or
    (e) If death occurred outside the United States, an official 
report of death by a United States Consul or other employee of the 
State Department, or a copy of public record of death in the foreign 
country.
    (f) If you cannot obtain any of the above evidence of death of 
the children of the deceased individual described in Part A, above, 
you must submit other convincing evidence, such as signed sworn 
statements of two or more persons with personal knowledge of the 
death, giving the place, date, and cause of death.
    (19) One of the following documents as evidence of the death of 
the parents of the deceased in individual described in Part A, 
above:
    (a) A certified copy of extract from the public records of 
death, coroner's report of death, or verdict of a coroner's jury;
    (b) A certificate by the custodian of the public record of 
death;
    (c) A statement of the funeral director or attending physician 
or intern of the institution where death occurred;
    (d) A certified copy, or extract from an official report or 
finding of death made by an agency or department of the United 
States government; or
    (e) If death occurred outside the United States, an official 
report of death by a United States Consul or other employee of the 
State Department, or a copy of public record of death in the foreign 
country.
    (f) If you cannot obtain any of the above evidence of death of 
the parents of the deceased individual described in Part A, above, 
you must submit other convincing evidence, such as signed sworn 
statements of two or more persons with personal knowledge of the 
death, giving the place, date, and cause of death.
    Each surviving sibling should submit the following:
    (20) One document as evidence of your relationship to your 
sibling (the deceased individual described in Part A, above), as 
follows:
    (a) Birth certificate showing that at least one of your deceased 
parents was also the natural parent of the deceased person described 
in Part A, above;
    (b) If the birth certificate does not show the deceased 
individual described in Part A, above, as your sibling, a certified 
copy of:
    (i) An acknowledgement in writing signed by the deceased person;
    (ii) The public record of birth or a religious record showing 
that the deceased person was named as your sibling.
    (iii) Affidavit of a person who knows that the deceased person 
was your sibling; or
    (iv) Public records, such as records of school or welfare 
agencies, which show that the deceased individual was named as your 
sibling.
    (v) If you cannot obtain any of the above evidence of your 
sibling relationship to the deceased individual described in Part A, 
above, you must submit any other evidence that would reasonably 
support a belief that a valid sibling relationship actually existed.
    (21) In addition, submit the following documents about yourself:
    (a) Identification. A document with your current legal name and 
address plus two or more sworn affidavits from individuals having 
personal knowledge of your identity (these should be submitted in 
addition to the document with current name and address).
    (b) One document of date of birth. A Birth certificate, or if 
unavailable, other proof of birth (e.g., passport).
    (c) One document of name change. If your current legal name is 
the same as that shown on documents attesting to your birth, this 
section does not apply. Persons whose current legal name is 
different than that used on such documents should submit a document 
or affidavit to corroborate the name change.
    (d) One document of evidence of guardianship. If you are 
executing this document as the guardian of the person identified as 
a surviving sibling by blood of the deceased individual described in 
Part A, above, you must submit evidence of your authority. If you 
are a legally-appointed guardian, submit a certificate executed by 
the proper official of the court appointment. If you are not such a 
legally-appointed guardian, submit an affidavit describing your 
relationship to the sibling and the extent to which you are 
responsible for the care of the sibling, or your position as an 
officer of the institution in which the sibling is 
institutionalized.

    Dated: December 1, 1998.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 98-32755 Filed 12-9-98; 8:45 am]
BILLING CODE 5000-04-M