On March 29, 1969, the USS FRANK E. EVANS (DD-754) departed its home port of Long Beach, California, with a crew of 272 onboard, setting sail for the western Pacific and duty in Vietnam. Neither the EVANS nor more than a quarter of her crew would ever return. The circumstances giving rise to the tragic loss of this ship on June 3, 1969, continues to haunt the families of the seventy-four (74) sailors who lost their lives early that morning. This haunting continues because we, as a nation, have failed to adequately address an issue which could, once and for all, provide them with closure.

I appear before this Committee today as an interested veteran and at the specific request of the USS FRANK E. EVANS Association, Inc. But I must report the subject we discuss this afternoon, Senate Bill 296, "The Fairness to All Fallen Vietnam War Service Members Act of 2003," goes beyond just the families of the FRANK E. EVANS' victims. Sadly, there are many other families who, similarly, lost loved ones in the Vietnam war under circumstances creating a "cloud of entitlement" as to eligibility for their names to be included among those that appear on the Vietnam Veterans Memorial "Wall." Accordingly, I respectfully request the Committee keep in mind numerous cases are in dispute as to a victim's entitlement to be so listed due to a failure by the Department of Defense (DOD) to uniformly apply eligibility standards for inclusion.

Let me further explain why I am here.

In late June 1969, I reported onboard the USS PERKINS (DD-877), a ship of very similar construction to the destroyer FRANK E. EVANS. When I joined my ship, she was off the coast of Vietnam, performing a very similar mission to that which the EVANS had been, i.e., providing gunfire support for U.S. and allied forces ashore. As a midshipman on PERKINS, I gained firsthand experience and appreciation for the dangers, risks and demands of serving at sea in a combat zone. That experience and appreciation was firmly embellished upon my mind as, by the time I reported onboard PERKINS, the EVANS had been lost. On occasion, my ship found itself performing the same mission EVANS was performing that ill-fated night of June 3-taking up position as rescue ship aft of an aircraft carrier preparing to launch and recover its planes. Several weeks later PERKINS arrived in Subic Bay in the Philippines where I was surprised to see the decommissioned stern section of FRANK E. EVANS. What I saw was a once proud destroyer, which had earned the nickname "The Fighter" for its Vietnam service on the gunline, now reduced to a sad, rusting hulk. Although I did not know a single member of EVANS' crew, I learned very early in my career of the bond that forms among those who serve in uniform. A fellow serviceman's pain becomes your pain; his loss becomes your loss. I suspect, Senator Campbell, based on your own service in the Korean war, that is why you as a legislator have concerned yourself so much over the years with veterans issues-for which I thank you. But as I observed the remains of the EVANS, a lump gathered in my throat. Coming to attention, I snapped a salute to the 74 souls lost onboard her. Although that emotional moment in my life occurred almost 34 years ago, I remember it as if it were yesterday. Accordingly, I was honored when the USS FRANK E. EVANS Association asked me to participate in a salute of a different nature to these 74 victims, this time by appearing before your Committee to testify as to the importance of S. 296.

The circumstances surrounding the loss of the EVANS are straightforward. Reporting for duty at Yankee Station off the coast of Vietnam on May 5th, the ship immediately demonstrated she was a valuable asset in the war effort. The crew received several commendatory messages for their professionalism, responsiveness and accuracy in destroying enemy targets in support of our fighting forces ashore. They participated as well in what was one of the largest amphibious assaults of that war. EVANS departed the combat zone, along with her two sister ships, for a brief logistics stop in Subic Bay before participating in Operation Sea Spirit in the South China Sea. Sea Spirit involved vessels from navies representing five of our six allies in Vietnam. EVANS, along with the two sister ships in her squadron, became the US Navy contingent of a five destroyer screen operating with the Australian aircraft carrier HMAS MELBOURNE. At 0310 on June 3rd, as the ships were still observing darkened ship wartime conditions operating on a specified zig-zag plan, EVANS was ordered to take up the preliminary position for duty rescue ship 1000 yards aft of MELBOURNE prior to the Aussie conducting flight operations.

In the process of executing this maneuver, a collision occurred between the two ships at 0315-with MELBOURNE slicing EVANS in half. The forward section of EVANS, where all 74 casualties were suffered, sank within nine minutes, while the aft section was salvaged and taken to Subic Bay. Although a full investigation into the incident was conducted by both U.S. and Australian authorities, the only findings in their final report which are of relevance to us here today are the location of the collision and the activities of EVANS in the days prior to the tragedy. These are the factors too that need to be revisited by DOD, as suggested by S. 296, to determine whether the EVANS' 74 died "as a direct or indirect result of military operations in southeast Asia."

In the wake of EVANS' loss and the commissioning of the Vietnam Veterans Memorial, repeated efforts by both EVANS' survivors and victims' families to have the names of their 74 shipmates and loved ones placed upon The Wall have been unsuccessful. The reason given is the EVANS' victims do not meet DOD eligibility standards for such inclusion, which require that death occur within the combat zone and as a result of enemy fire. However, the eligibility standards cited as a basis for denial have been given a broad interpretation over the years to, in fact, include others now whose names are on The Wall but who fail to meet the same criteria applied to the EVANS' 74.

I do not wish to put myself in the difficult position of naming to the Committee names, already on The Wall, of individuals who, under somewhat similar circumstances, were deemed eligible while the EVANS' 74 were not. To do so would cast a shadow upon the entitlement of other deserving heroes. Therefore, I will only use generic categories to support the contention there is a lack of uniformity in applying eligibility standards.

I submit by way of example, the first addition of names to be made to the Memorial after its 1982 dedication, described in the Vietnam Veterans Memorial Fund literature as "68 names of servicemen, all of whom were killed in an airplane crash enroute from the combat zone to Tokyo for R&R." Entitlement was given to this R&R group, for deaths apparently outside the combat zone and not as a result of enemy action. Why then was entitlement denied to the EVANS' 74 who were similarly lost outside the combat zone--especially in light of evidence EVANS would have returned to the combat zone immediately after Operation Sea Spirit, as did her two sister ships? This clearly demonstrates a lack of uniformity in eligibility. Included on the Memorial too are names of aircrew members who died in the combat zone in crashes caused, not by enemy fire, but by mechanical problems.

At the time of the initial dedication of the Vietnam Veterans Memorial, a total of 57,939 names appeared on The Wall. Over the past twenty-one years, an additional 296 names have been added-the last group just this past Memorial Day. But, in the eyes and hearts of the families of the EVANS' 74, the application of eligibility standards has not been uniform to all, resulting in a denial of eligibility not only to the EVANS' 74 but others too. The confusion surrounding eligibility is further evidenced by the fact The Vietnam Veterans of America, the only Vietnam veterans organization chartered by Congress, reports almost daily inquiries being made by family members whose names of loved ones were left off the Wall.

The process for determining a victim's eligibility for name inclusion on The Wall is not unlike the evolution of workman's compensation law in many states having to determine if an act by an employee giving rise to an injury falls within the scope of employment. Initially, that scope was interpreted very narrowly by the courts. But in subsequent years, the range of factors weighed to determine if an act was "in furtherance of" the employment relationship has been broadened. Even an act occurring far away from the work location is deemed to be within the scope as long as an employer reasonably knew or should have known an employee might engage in it. Thus, the legal boundaries of the employment relationship in workman's compensation cases have been greatly expanded. A similar argument is applicable to the eligibility standards for name inclusion on The Wall. But, unfortunately, the decision-making process at DOD for regulating applicability of eligibility standards has lacked the consistency our courts have exhibited in dealing with workman's compensation cases. This has resulted in a perception that the eligibility-determining process for name inclusion on The Wall is arbitrarily applied. Absent responsible action by Congress in the form of S. 296, it is unlikely DOD will undertake any effort to implement a uniform eligibility process, continuing to leave affected families frustrated in their efforts to honor their loved ones. A need for DOD to undertake the study and report called for by S. 296 is further underscored by the cloud of entitlement for inclusion on The Wall raised by groups such as Air America, employees of the CIA which lost 242 pilots and crew members in Southeast Asia in the war conducting rescue operations deep behind enemy lines in North Vietnam and Laos.

I would respectfully suggest to the Committee that every aspect of the eligibility issue be addressed by DOD in its final report. The issue of friendly fire, for example, needs to be included. For example, a DOD precedent has been set in awarding the Purple Heart, normally reserved for those killed or wounded by enemy fire, to those killed or wounded by friendly fire as well. If DOD recognizes entitlement to such a medal for one killed or wounded by friendly fire, should it recognize entitlement for name inclusion on The Wall where death has been caused by friendly fire? Another issue then becomes what constitutes "friendly fire?" Could the sinking of EVANS and casualties caused by its collision with MELBOURNE qualify as the equivalent of friendly fire?

In need of address too is the issue concerning the geographic area actually constituting the combat zone. Executive Order No. 11216, signed by President Johnson on April 24, 1965, designated Vietnam and its adjacent coastal waters, within specified geographical coordinates, as a combat zone. As hostilities spread to neighboring nations, so too did the designated combat zone, eventually including areas such as Laos and Cambodia. The combat zone off the coast of Vietnam varied in width as it roughly paralleled that country's coastline, with no apparent rationale as to why a variation in distances existed between the shoreline and the zone's furthest seaward boundary at any given point. While the official combat zone existed as a delineated "box" on the map, known enemy vessel activity took place outside that box, necessitating periodic air and sea patrols there as well. Did engagements outside this box, therefore, extend the combat zone beyond the parameters delineated on the map? Such issues need to be addressed.

The loss of EVANS on June 3, 1969 devastated many families. A father, Lawrence J. Reilly Sr., survived the collision, only to discover his son, Lawrence Jr., did not. Also, in a chilling reminder of the five Sullivan brothers lost during World War II in the sinking of the USS JUNEAU, one family lost three brothers-Greg, Gary and Kelly Jo Sage-the morning EVANS went down. Their now elderly mother continues to attend annual reunions of the EVANS Association, still wondering why her three sons are not recognized on The Wall.

President Nixon wrote the families of other victims, including the mother of Seaman Andrew J. Botto. In his letter, Mr. Nixon promised "I can only assure you that the nation he died to serve shares your grief, and will forever honor his memory." Mrs. Botto, now 83, still waits for a grateful nation to do so.

Mr. Chairman and distinguished members of this Committee, we respectfully ask of you the question we so often hear from the families of the EVANS' 74: "Hasn't the time now come for this Nation to forever honor their memory?" This can only be achieved by the passage of S. 296 so that the eligibility issue can be revisited with a Congressional mandate to fairly and uniformly apply policies these families can understand and support.

If the full intent of S. 296 is met, the end result should either be:

(A) A determination of eligibility to include the names of the EVANS' 74 on The Wall, as well as others who died in the Vietnam war under a cloud of entitlement, or

(B) In the event eligibility is still denied, a provision to establish an alternative memorial, honorably recognizing their sacrifice and listing the names of the EVANS' 74. This result will not only remind a grateful nation never to forget them but also fill a void in the lives of families and friends who have fought so long and hard for their recognition.

Now, Mr. Chairman, having expressed much dissatisfaction, let me hasten to commend the enormously dedicated work of Mr. Jan Scruggs and his highly motivated staff. We know their best intentions are to operate faithfully within directives given them but over which they have no authority to change. Simply said, without Mr. Scruggs' constant, untiring efforts, there would be no Wall today honoring the Vietnam veterans who perished in that war.

Mr. Chairman and distinguished members of this Committee, on behalf of the USS FRANK E. EVANS Association, I want to thank you for allowing us to appear today to express our support for Senate Bill 296. It has no budgetary impact nor makes no change in current policies, but is an essential and necessary first step in fully re-examining the eligibility issue for name inclusion on this emotionally-inspiring memorial. It is a bill which ALL senators can and should support.

We strongly urge the prompt passage of S. 296. Thank you.