B-200402, APR 13, 1982

B-200402, APR 13, 1982

DIGEST: B-200402, NOVEMBER 6, 1981, AFFIRMED SINCE CLAIMANT HAS NOT PRESENTED ADDITIONAL EVIDENCE SHOWING WHY HE SHOULD BE AWARDED MORE THAN $5,000.

RECONSIDERATION OF CLAIM OF MR. TRAN QUY MINH:

MR. TRAN QUY MINH HAS REQUESTED RECONSIDERATION OF OUR DECISION, B-200402, NOVEMBER 6, 1981, IN WHICH WE AWARDED HIM $5,000 ON HIS CLAIM FOR RENT PAYMENTS OWED BY THE UNITED STATES. MR. MINH NOW CONTENDS THAT HE SHOULD BE AWARDED $9,751.35. FOR THE REASONS GIVEN BELOW, WE AFFIRM OUR AWARD OF $5,000.

THE AWARD TO MR. MINH WAS BASED ON A LEASE TO THE UNITED STATES ARMY OF HIS HOUSE AT 65 TRINH PHONG STREET, NHA TRANG, VIETNAM, FROM AUGUST 1965 TO AUGUST 1971. FN1 IN OUR 1981 DECISION WE CONCLUDED THAT THE 6 YEAR STATUTE OF LIMITATIONS IN 31 U.S.C. SEC. 71A DID NOT BAR MR. MINH'S CLAIM, AND THAT THE AMOUNT OF PIASTERS OWED MR. MINH COULD BE CONVERTED TO DOLLARS AT THE RATE OF 80 PIASTERS TO THE DOLLAR. WE AWARDED MR. MINH ONLY HALF OF THE $10,000 CLAIMED, HOWEVER, SINCE THE FACTS SUGGESTED THAT MR. MINH'S FORMER WIFE, MRS. VU THI PHU, PROBABLY WAS ENTITLED TO A PORTION OF THAT AMOUNT AS PART OF A DIVORCE SETTLEMENT WITH MR. MINH.

MR. MINH NOW CONTENDS THAT HE SHOULD HAVE BEEN AWARDED $9,751.35. ARGUES THAT THE RENTS DUE ON HIS LEASE WITH THE UNITED STATES FOR THE PREMISES AT 65 TRINH PHONG STREET AMOUNTED TO $16,400 AND THAT DAMAGES TO THE FURNISHINGS TOTALLED AN ADDITIONAL $3,102.71. HE ALSO MAINTAINS THAT IT IS NOT FAIR TO AWARD ONLY $10,000 SINCE THE ARMY RENTED TWO HOUSES, WHICH, TOGETHER WITH THE DAMAGE TO FURNISHINGS, AMOUNT TO A DEBT OF OVER $30,000. TO RESOLVE THE PROBLEM MR. MINH STATES THAT HE WILL FOREGO THE CLAIM FOR THE PREMISES AT 65B TRINH PHONG STREET ON CONDITION HE IS PAID $9,751.35 OF A TOTAL AWARD OF $19,502.71 TO HIM AND HIS FORMER WIFE.

AS WE INDICATED IN OUR EARLIER DECISION, WE REQUIRE ALL CLAIMS AGAINST THE GOVERNMENT TO BE SUPPORTED BY THE BEST EVIDENCE OBTAINABLE. SEE 55 COMP.GEN. 402, 404 (1975). ALTHOUGH THE FACTS PRESENTED IN SUPPORT OF MR. MINH'S CLAIM WERE NOT AS FULLY CORROBORATED AS WE MIGHT HAVE LIKED, WE THOUGHT THAT THE CIRCUMSTANCES OF WAR AND FORCED EVACUATION WERE SUFFICIENTLY UNUSUAL TO ALLOW US TO MAKE FINDINGS OF FACT THAT MIGHT OTHERWISE REQUIRE ADDITIONAL EVIDENCE. ACCORDINGLY, WE FOUND THAT:

"*** THE ARMY HELD IN ABEYANCE THE RENT PAYMENTS OWED ON THE LEASED PREMISES FROM MARCH 1968 THROUGH OCTOBER 1971 BECAUSE OF THE PENDING DIVORCE PROCEEDINGS; THAT NO RENTAL PAYMENTS HAVE BEEN MADE SINCE MARCH 1968; THAT AS OF MARCH 1975 THE DIVORCE PROCEEDINGS BETWEEN MR. MINH AND MRS. PHU HAD NOT YET TERMINATED; THAT MRS. PHU MIGHT HAVE BEEN AWARDED A PORTION OF THE RENT PROCEEDS AS PART OF THE DIVORCE SETTLEMENT; AND THAT THERE IS INSUFFICIENT EVIDENCE TO SUPPORT MR. MINH'S CLAIM THAT HE ALSO LEASED PREMISES TO THE ARMY AT 65B TRINH PHONG STREET."

SINCE MR. MINH HAS NOT PRESENTED ANY ADDITIONAL EVIDENCE TO SUPPORT HIS CLAIM THAT HIS HOUSE AT 65B TRINH PHONG STREET WAS ALSO LEASED TO THE ARMY, HIS OFFER TO FOREGO HIS CLAIM FOR RENTS DUE FOR THOSE PREMISES MUST BE DISREGARDED.

ANOTHER PROBLEM WE ENCOUNTERED WAS THE AMOUNT OF MR. MINH'S CLAIM. ONE POINT MR. MINH INDICATED HE WAS OWED SOMETHING MORE THAN $10,000, A FIGURE IN ACCORD BOTH WITH HIS $10,000 SETTLEMENT OFFER AND A FIGURE OF ONE MILLION PIASTERS FN2 ALSO SUGGESTED BY MR. MINH. ON THE OTHER HAND, A CLAIMS SETTLEMENT AGREEMENT SIGNED BY MR. MINH, DATED AUGUST 29, 1972, PROVIDED FOR A SETTLEMENT OF 289,000 PIASTERS. IN JUNE 1973, AN ARMY STATUS REPORT INDICATED THAT $3,102.71 WAS COMMITTED TO PAY THE DEBT TO MR. MINH, A FIGURE CONSISTENT WITH THE CLAIMS SETTLEMENT AGREEMENT. ALTHOUGH MR. MINH INFORMALLY TOLD US THAT THE CLAIMS SETTLEMENT AGREEMENT COVERED ONLY DAMAGES TO THE LEASED PREMISES AND DID NOT INCLUDE THE RENTS DUE, ON ITS FACE THE AGREEMENT RELEASED THE UNITED STATES FROM ANY CLAIM MR. MINH MAY HAVE HAD "ARISING OUT OF THE OCCUPANCY" OF THE PREMISES AT 65 TRINH PHONG STREET. THIS SUGGESTED TO US THAT THE CLAIMS SETTLEMENT AGREEMENT MAY HAVE INCLUDED THE RENT PAYMENTS. IN THIS REGARD, WE NOTE THAT WHEN THE ARMY TRANSMITTED THE CLAIM TO US, IT CONSIDERED THE AMOUNT CLAIMED TO BE 289,000 PIASTERS ($3,102.71). A THIRD FIGURE WE CONSIDERED WAS $16,400, WHICH WE OBTAINED BY MULTIPLYING THE MONTHLY RENT - 30,510 PIASTERS - BY THE NUMBER OF MONTHS - 43 - DURING WHICH WE ASSUMED THE RENT HAD NOT BEEN PAID, AND CONVERTING THAT FIGURE INTO DOLLARS AT THE RATE OF 80 PIASTERS TO THE DOLLAR.

IN VIEW OF THE DIFFERENT FIGURES PRESENTED IN THE CASE, WE CONCLUDED THAT THE REASONABLE VALUE OF THE CLAIM WAS $10,000, OF WHICH HE WAS ENTITLED TO ONE-HALF. ALTHOUGH WE THOUGHT THE FACTS MORE SUPPORTIVE OF THE 289,000 PIASTERS ($3,102.71) MENTIONED IN THE CLAIMS SETTLEMENT AGREEMENT THAN THE $16,400 RESULTING FROM OUR COMPUTATION, WE DID NOT USE THE CLAIMS SETTLEMENT AGREEMENT FIGURE BECAUSE WE WERE NOT CERTAIN THAT IT INCLUDED RENTS DUE, IT DID NOT APPEAR TO BE SIGNED BY THE UNITED STATES, AND THE PAYMENT CALLED FOR WAS NEVER MADE. IN OUR JUDGMENT THE $10,000 FIGURE REPRESENTED A REASONABLE COMPROMISE.

MR. MINH HAS NOT PRESENTED ANY ADDITIONAL EVIDENCE ON THE ACTUAL AMOUNT OWED FOR THE PREMISES AT 65 TRINH PHONG STREET. THEREFORE, WE MUST AFFIRM OUR NOVEMBER 6, 1981 DECISION.

FN1 MR. MINH'S LETTER OF SEPTEMBER 9, 1977, TO THE ARMY CLAIMED RENTS ONLY FOR 1967 AND 1968, BUT INCLUDED TWO HOUSES - ONE AT 65 AND THE OTHER AT 65B TRINH PHONG STREET. IN OUR PREVIOUS DECISION, WE HELD THAT NO RENTS HAD BEEN PAID ON THE LEASE OF 65 TRINH PHONG STREET FOR THE PERIOD MARCH 1968 THROUGH OCTOBER 1971, WHEN THE ARMY VACATED HIS PREMISES. HOWEVER, WE FOUND INSUFFICIENT EVIDENCE TO SUPPORT HIS CLAIM THAT HE ALSO LEASED PREMISES AT 65B TRINH PHONG STREET.

FN2 THIS ASSUMES AN EXCHANGE RATE OF 80 PIASTERS TO THE DOLLAR OR SOMETHING CLOSELY APPROXIMATING THAT PIASTER FIGURE.