IN THE UNITED STATES DISTRICT COURT

FOR THE

EASTERN DISTRICT OF PENNSYLVANIA

THE REPUBLIC OF KOREA, :

A SOVEREIGN STATE, et al., :

:

Plaintiffs, :

:

v\. : Civil Action-Class Action

: No. 99CV-181

THE UNITED STATES OF AMERICA, :

:

Defendant. :

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DECLARATION OF JAMES G. HERGEN

I, JAMES G. HERGEN, declare as follows:

1\. I am the Assistant Legal Adviser for East Asian and Pacific Affairs,
Office of the Legal Adviser, United States Department of State,
Washington, D.C., 20520, a position that I have held since 1992. Prior
to that time, I occupied the position of Assistant legal Adviser for
Consular Affairs, since 1983. From 1974-1982, I was a Trial Attorney in
the Office of Foreign Litigation, Civil Division, United States
Department of Justice. I am a member in good standing of the District of
Columbia Bar.

2\. I have received a copy of the Amended Complaint in the
above-captioned case.

3\. Upon receipt of the Amended Complaint, I immediately coordinated
with the relevant Department of State offices and bureaus, other
potentially interested federal agencies, and the United States Embassy
in Seoul, Republic of Korea ("ROK") in order to ascertain the relevant
facts and to confirm the current national security classification
[vel]{.underline} [non]{.underline} of such information, including the
March 1966 Brown Letter, [infra]{.underline}, a copy of which is
appended to the amended Complaint as an Exhibit and which is marked
"SECRET."

4\. Plaintiffs' Amended Complaint names the ROK, a sovereign nation, as
a plaintiff in this action. Because such suits would be extraordinary, I
immediately made particular inquires with the Department's Korea Desk
and the U.S. Embassy in Seoul, Korea, to confirm whether the ROK
government had ever authorized the ROK to appear as a plaintiff in this
action.

5\. This declaration is based solely and exclusively upon information
that has become known to me in the course and scope of the performance
of my official duties.

**BACKGROUND OF ROK PARTICIPATION IN THE VIETNAM CONFLICT GENERALLY**

6\. The chronology of the ROK's involvement in the Vietnam Conflict is
authoritatively catalogued in extensive hearings that were held before
the Subcommittee on United States Security Agreements and Commitments
Abroad of the Committee on Foreign Relations of the United States
Senate, 91st Cong., 2d Sess., Part 6, February 24-26, 1970.
(Hereinafter, "SFRC Report" or "Report.")

7\. The ROK's participation in the Vietnam Conflict began in 1964, with
the dispatch to the Republic of Vietnam ("RVN") of small numbers of
non-combatant personnel (a mobile surgical hospital and ten Taekwondo
instructors). SFRC Report, [supra]{.underline}, at 1568. The stated
ROK's rationale for sending forces to Vietnam was expressed to the
Korean people by President Chung Hee Park at a farewell rally that was
held for some 2,000 departing ROK non-combat troops in February, 1965:

> The Republic of Vietnam asked this nation for military assistance to
> enable her to defend herself against Communist Vietnam guerrillas
> supported by Communist China. In response to this request, the
> Government made careful analysis of the Vietnam situation, and decided
> to extend help based on the viewpoint that such action would not only
> solidify our own national security but also contribute toward
> strengthening the anti-Communist front of the free World\*\*\*
>
> Needless to say, the Government decision to send you men to South
> Vietnam can be ascribed, in the first place, to our judgment that the
> action is part of our moral responsibility in furtherance of Asia's
> collective security. It would be almost inevitable if Vietnam were to
> succumb to communist infiltration that the entire Asian region would
> be subject to the growing communist threats\*\*\*In view of this, the
> proposed military assistance is an indirect national defense of this
> country. Finally, when we were confronted with the communist
> aggression fourteen years ago, the fate of this country was saved by
> sixteen Free World allies headed by the United States. We\*\*\*cannot
> sit on our hands and see. . .our friendly allies become prey to
> communist invasion. \[SFRC Report, at 1543.\]

8\. In June 1965, the RVN formally requested that the ROK send a combat
division to Vietnam; this request was approved by the Korean National
Assembly on August 13 , and the first ROK combat forces (the Tiger
Division and the Marine Brigade) arrived in the RVN in October. Id., at
1569.

9\. Upon receipt of the RVN request, the U.S. and ROK initiated
consultations to resolve ROK concerns that the dispatch of ROK combat
troops might potentially (i) degrade ROK national security by removing
combat forces from the Korean peninsula; and, (ii) adversely affect the
still fragile ROK economy, including the level of U.S. military
assistance to the ROK . [Id]{.underline}.

10\. In February 1966, the RVN requested yet more ROK military forces,
and the ROK's National Assembly approved the dispatch of the 2d Korean
Combat Division on March 30 of that year, with deployment commencing in
April. [Id]{.underline}. The final deployment of ROK troops to Vietnam
occurred in July 1967, when the ROK dispatched 3,000 military personnel
to the RVN to round out their force. [Id]{.underline}., at 1555. The
total number of ROK military personnel deployed to the RVN for the
period 1965-1970 was 47,872. [Id]{.underline}. , at 1571. As of February
7, 1970, cumulative ROK casualties in Vietnam were: 3,094 killed in
action; 3,051 wounded in action; and four missing in action.
[Id]{.underline}., at 1556. Total U.S. death and disability payments for
the killed and injured ROK forces during this period amounted to \$10.5
million. [Id]{.underline}., at 1571.

**BACKGROUND AND INTERPRETATION OF THE BROWN COMMITMENT OF MARCH 4, 1966
RELATIVE TO DEATH AND DISABILITY GRATUITIES FOR ROK MILITARY PERSONNEL**

11\. One of the first actions that I took upon receipt of the Amended
Complaint was to determine the validity and national security
classification of the copy of the Brown Letter. I was able to confirm
that (i) the document that is attached to plaintiffs' Amended Complaint
is an accurate copy of the original letter, and (ii) the document is no
longer classified for national security purposes. (Indeed, a copy of the
document appears in full text at

pp. 1549-1550 of the SFRC Report.)

12\. The genesis of the ROK troop presence in Vietnam was a January 5,
1965, meeting between President Lyndon Johnson and ROK President Park.
SFRC Report, at 1542.

13\. It was apparent by as early as March 1965, that extensive economic
and military inducements on the part of the United States would be
necessary to enable the ROK to contribute to the multinational force is
Vietnam.

14\. When the Korean National Assembly authorized the deployment of ROK
troops to Vietnam on August 13, 1965, President Johnson sent a letter of
thanks to President Park. [American Foreign Policy: Current
Documents]{.underline}, 1965, p. 781.

15\. At this period in Korea's history, the ROK was still recovering
from the devastation that had been wrought on the country during the
Korean Conflict, and its economy was still extremely fragile. At the
same time, the ROK was desperately concerned with the threat of possible
attack by North Korea and it therefore did not wish to send its military
forces to Vietnam if to do so would weaken its own domestic defense
against attack from the North. By the same token, however, the ROK was
equally concerned that there be no diminution of U.S. military force
presence on the peninsula.

16\. With these considerations and concerns in mind\--i.e., the
inevitable tension between the ROK desire to support the multinational
effort against communist aggression in Vietnam on the one hand, and its
own economic and security needs on the other\--negotiations commenced
between the U.S. and the ROK on December 28, 1965, regarding an
appropriate [quid]{.underline} [pro]{.underline} [quo]{.underline} for
the deployment of ROK combat forces to Vietnam. These negotiations were
conducted at the highest levels of both governments, and included such
notables as Vice President Hubert Humphrey, Secretary of State Dean
Rusk, Secretary of Defense Robert McNamara, ROK Minister of National
Defense Kim Song-un, ROK Foreign Minister Lee Tong-Won, and Ambassador
Brown.

17\. On January 8, 1966, the ROK first presented to the U.S. its list of
economic and military requirements that would be a [sine]{.underline}
[qua]{.underline} [non]{.underline} for the dispatch of ROK combat
forces to the RVN, including compensation for death and disability
suffered by ROK forces in Vietnam.

18\. As the Brown Letter makes clear, the United States agreed to
provide "death and disability [gratuities]{.underline}. . .at double the
rates. . .agreed to by the Joint United States-\[ROK\] Military
Committee." Emphasis supplied. The U.S. never assumed legal liability
for such [ex]{.underline} [gratia]{.underline} payments, and there was
no privity whatsoever between the U.S, and individual ROK servicemen and
their survivors. Moreover, the Brown Letter does not address the
question of latent injuries, and I have found no evidence that either
the U.S. or the ROK intended to address such injuries.

19. The Joint U.S.-ROK Military Study that formed the base amounts of
    the gratuities called for payments [by the ROK]{.underline} to ROK
    forces of approximately \$800 (won equivalent), on average, for ROK
    forces killed in action and lesser amounts for deaths from other
    causes or from disabilities. Moreover, the U.S. payments were to be
    in the form of direct dollar payments [to the ROK Minister of
    National Defense]{.underline} in the same manner as the cash
    transfer system that was used for the payment of overseas allowances
    for ROK forces in Vietnam. [See]{.underline} SFRC Report,
    [supra,]{.underline} at 1547 ("The United States Government provides
    the ROKG with funds to pay the overseas allowances at agreed rates
    for all ROK military personnel deployed to South Vietnam.").
    [See]{.underline} [also]{.underline}, [id]{.underline}., at 1544
    (quoting Secretary of Defense McNamara in his January 20, 1966
    appearance before the Senate Appropriations Committee: "\[The\]
    compensation \[of ROK forces\] comes in two parts, two segments. One
    is what you would call their normal compensation and basically that
    is paid by the Korean Government. [The other is what you would call
    temporary duty compensation and essentially that is being paid by
    us, their government in turn uses to pay them]{.underline}."
    Emphasis supplied.) Contrary to plaintiffs' intimations in their
    Amended Complaint, nothing in the Brown Letter authorizes payments
    of benefits from the United States Government directly to individual
    Korean veterans.

20. On July 15, the U.S. Embassy in Seoul informed me that the Korean
    Ministries of Foreign Affairs and Justice had officially confirmed
    that the ROK is not a party to this lawsuit.

21\. The work of the Joint U.S.-ROK Military Committee on Death and
Disability Benefits was quite detailed and extensive, and (at U.S. in
insistence, given the actual modest death and disability payments that
the ROK paid to its military personnel and their survivors) provided for
benefits that were greatly in excess of similar benefits that were then
being paid by the ROKG to its forces for deaths and disability. For
example, as of January 24, 1966, the ROK death benefit to the survivor
of a general officer was only \$61.10 (16,000 won); the disability
payment to a general officer who suffered a "Category 1" injury,
[e]{.underline}.[g]{.underline}., loss of both arms, was a lump-sum
payment of 12 months' salary. The U.S. members of the Joint Committee
considered these amounts to be "grossly inadequate," and therefore
adjusted the payments upwards considerably,
[e]{.underline}.[g]{.underline}., the survivor of an ROK general officer
who was killed in action would receive about \$672 (181,440 won), and a
"Category 1" disabled general officer would receive approximately
\$1,344 (324,480 won).

22\. Based on average ROK mortality and injury rates, the Joint
Committee estimated that the total annual cost for death and disability
payments for ROK forces in Vietnam would run to approximately
\$1,230,000 (332,000,000 won) each year, unless doubled, as they
ultimately were in the Brown Letter. As noted in para. 10,
[supra]{.underline}, total U.S. death and disability payments under the
Brown Letter amounted to \$10.5 million at the termination of the Joint
Committee.

I declare under penalty of perjury, pursuant to 28 U.S.C. §1746, that
the foregoing is true and correct to the best of my information and
belief.

Executed on July 27, 1999

At Washington, D.C.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

JAMES G. HERGEN