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B-63549, FEB. 13, 1961

B-63549 Feb 13, 1961
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NAVY FINANCE CENTER: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 5. HIS CLAIM WAS DENIED. THIS CLAIM WAS DISALLOWED ON THE BASIS THAT THE RATE OF RETIRED PAY TO WHICH COMMANDER BERRY WAS ENTITLED HAD BEEN DECIDED IN BERRY V. THAT ANY QUESTIONS AS TO SUCH RATE WERE MATTERS RES JUDICATA. WE WERE ADVISED THAT A MOTION TO DISMISS THE ABOVE PETITION HAD BEEN FILED WITH THE DEPARTMENT OF JUSTICE TO BE HELD IN ESCROW PENDING SATISFACTORY SETTLEMENT OF COMMANDER BERRY'S CLAIM BY US. WAS SUSTAINED. WHICH APPARENTLY WAS BELIEVED TO AUTHORIZE SUCH ACTION. APPROVED THE FOLLOWING DECISION AND RECOMMENDATION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS: "DECISION: "IT IS THE DECISION OF THIS BOARD THAT PETITIONER'S NAVAL RECORD.

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B-63549, FEB. 13, 1961

TO MR. F. I. ALLEN, RETIRED PAY DEPARTMENT, U.S. NAVY FINANCE CENTER:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 5, 1960, TO OUR CLAIMS DIVISION FORWARDING, WITH OTHER ENCLOSURES, A CLAIM OF COMMANDER ALBERT G. BERRY, JR., USNR, RETIRED, FOR ADDITIONAL RETIRED PAY BASED UPON A PURPORTED CORRECTION OF HIS NAVAL RECORDS. YOU REQUEST APPROVAL OF THE CLAIM PRIOR TO ITS PAYMENT.

IN A SUIT IN THE COURT OF CLAIMS, COMMANDER BERRY SOUGHT ADDITIONAL RETIRED PAY FROM FEBRUARY 1, 1947, ON THE THEORY THAT HE CAME WITHIN THE SCOPE OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368 (RETIRED PAY AT 75 PERCENT OF ACTIVE DUTY PAY AT THE TIME OF RETIREMENT). IN BERRY V. UNITED STATES, 123 CT.CL. 530, DECIDED OCTOBER 7, 1952, HIS CLAIM WAS DENIED, ON THE MERITS.

ON MAY 6, 1958, COMMANDER BERRY FILED A CLAIM WITH US FOR INCREASED RETIRED PAY ON THE THEORY OF BROWNELL, ET AL. V. UNITED STATES, 140 CT.CL. 427, DECIDED DECEMBER 4, 1957 (INCREASED RETIRED PAY BY REASON OF CREDIT FOR TIME SPENT AT THE UNITED STATES NAVAL ACADEMY). ON SEPTEMBER 18, 1958, THIS CLAIM WAS DISALLOWED ON THE BASIS THAT THE RATE OF RETIRED PAY TO WHICH COMMANDER BERRY WAS ENTITLED HAD BEEN DECIDED IN BERRY V. UNITED STATES AND HENCE, THAT ANY QUESTIONS AS TO SUCH RATE WERE MATTERS RES JUDICATA. ON MARCH 9, 1959, COMMANDER BERRY FILED A PETITION (BERRY AND SMALL V. UNITED STATES, CT.CL. NO. 108-59) IN THE COURT OF CLAIMS FOR INCREASED RETIRED PAY FROM FEBRUARY 1, 1947, ON THE BROWNELL THEORY, THE BASIS FOR THE CLAIM WHICH HAD BEEN DISALLOWED BY US ON SEPTEMBER 18, 1958.

ON MAY 27, 1959, WE WERE ADVISED THAT A MOTION TO DISMISS THE ABOVE PETITION HAD BEEN FILED WITH THE DEPARTMENT OF JUSTICE TO BE HELD IN ESCROW PENDING SATISFACTORY SETTLEMENT OF COMMANDER BERRY'S CLAIM BY US. ON JULY 1, 1959, IN A DECISION TO HIS ATTORNEY, B-63549, THE DISALLOWANCE OF SEPTEMBER 18, 1958, WAS SUSTAINED.

ON SEPTEMBER 23, 1960, THE ASSISTANT SECRETARY OF THE NAVY (PERSONNEL AND RESERVE FORCES), ACTING UNDER 10 U.S.C. 1552, WHICH APPARENTLY WAS BELIEVED TO AUTHORIZE SUCH ACTION, APPROVED THE FOLLOWING DECISION AND RECOMMENDATION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS:

"DECISION:

"IT IS THE DECISION OF THIS BOARD THAT PETITIONER'S NAVAL RECORD, SPECIFICALLY HIS PAY RECORD, BE CORRECTED, WHEREVER APPROPRIATE, TO SHOW THE CORRECT AMOUNT OF ACTIVE DUTY PAY AND ALLOWANCES AND RETIRED PAY TO WHICH HE WAS AND IS ENTITLED IN CONSONANCE WITH THE U.S. COURT OF CLAIMS DECISION IN THE CASE OF BROWNELL ET AL. V. THE UNITED STATES, 140 C.CLS. 427.'

"RECOMMENDATION:

"THE BOARD RECOMMENDS THAT THE DEPARTMENT OF THE NAVY PAY TO THE PETITIONER, OR OTHER PROPER PARTY OR PARTIES, ALL MONIES LAWFULLY FOUND TO BE DUE AS A RESULT OF THE FOREGOING CORRECTION OF NAVAL RECORD.'

THE PRESENT CLAIM IS PRESENTED ON THE BASIS OF THE ABOVE ACTION.

THE ACTION OF A CORRECTION BOARD,"IF IT IS TO GIVE RISE TO A RIGHT TO THE PAYMENT OF MONEY, MUST, WITHOUT EXCEPTION, BE A CHANGE OF FACTS AS SET OUT IN THE ORIGINAL RECORD, OR AN ADDITION TO, OR A DELETION OF SOME OF, SUCH FACTS, SUCH CHANGE, ADDITION, OR DELETION BEING NECESSARY TO ESTABLISH A PROPER BASIS TO SUPPORT THE PAYMENT.' 39 COMP. GEN. 178, 180. THE PRESENT CORRECTION" DOES NOT SUPPLY ANY FACTS ENTITLING COMMANDER BERRY TO A PAYMENT OF MONEY. INSTEAD IT PURPORTS TO CORRECT HIS PAY RECORD. A PAY RECORD DOES NOT ESTABLISH A RIGHT TO THE PAYMENT OF MONEY. IT MERELY SHOWS WHAT WAS PAID TO OR WITHHELD FROM THE INDIVIDUAL CONCERNED. THE RIGHT TO PAYMENT ON SOME OTHER BASIS THAN THAT REFLECTED IN THE PAY RECORD MUST BE ESTABLISHED FROM INFORMATION OBTAINED OUTSIDE THAT RECORD. IF THE FACTS IN THIS CASE ARE SUCH AS TO BRING HIM WITHIN THE RULE OF THE BROWNELL CASE, HIS RECORD SHOWED THAT HE WAS ENTITLED TO THE BENEFITS OF THAT CASE BEFORE THE CORRECTION BOARD'S ACTION. THE QUESTION HERE INVOLVED IS WHETHER HIS FAILURE TO ASSERT THAT RIGHT IN HIS FIRST SUIT BARS HIS PRESENT CLAIM IN WHOLE OR IN PART. THAT IS A QUESTION OF LAW WHICH THE CORRECTION BOARD AND THE SECRETARY OF THE NAVY ARE WITHOUT AUTHORITY TO DECIDE AND THAT MATTER COULD NOT BE DETERMINED IN ANY EVENT BY DIRECTING THE CORRECTION OF A RECORD WHICH ALREADY SHOWED ENTITLEMENT TO THE RETIRED PAY CLAIMED AND WHICH WAS PAYABLE EXCEPT FOR THE RULE OF RES JUDICATA. SEE HAISLIP V. UNITED STATES, CT.CL. NO. 442-59, AND TWO RELATED CASES, DECIDED JANUARY 18, 1961.

WHILE RECENT DECISIONS OF THE COURT OF CLAIMS MAY REQUIRE SOME CHANGE IN THE VIEWS CONCERNING RES JUDICATA EXPRESSED IN OUR DECISION OF JULY 1, 1959, IN THIS CASE, WITH RESPECT TO THE PERIOD AFTER THAT COVERED BY THE JUDGMENT IN COMMANDER BERRY'S FIRST COURT ACTION DECIDED OCTOBER 7, 1952 (SEE CLARK, ET AL. V. UNITED STATES, CT.CL. NO. 45-55, DECIDED JUNE 8, 1960, AND REGISTER V. UNITED STATES, CT.CL. NO. 207-59, DECIDED JULY 15, 1960) IT IS NOT NECESSARY TO DECIDE THAT MATTER AT THIS TIME SINCE COMMANDER BERRY HAS A SUIT PENDING IN THE COURT OF CLAIMS FOR THE BENEFITS HERE SOUGHT COMMENCING FEBRUARY 1, 1947. IT IS NOT OUR POLICY TO ALLOW A CLAIM WHICH CONSTITUTES A PART OR ALL OF A CLAIM INVOLVED IN A PENDING COURT ACTION. EVEN IF WE SHOULD ALLOW THE CLAIM FOR THE PERIOD NOT COVERED BY THE JUDGMENT OF OCTOBER 7, 1952, THE DEPARTMENT OF JUSTICE WOULD NOT BE AUTHORIZED TO FILE THE PLAINTIFF'S MOTION TO DISMISS, SINCE SUCH ALLOWANCE WOULD NOT CONSTITUTE A SETTLEMENT OF THE CLAIM BEFORE THE COURT WHICH WOULD BE SATISFACTORY TO COMMANDER BERRY.

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