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B-141450, APR. 28, 1965

B-141450 Apr 28, 1965
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RETIRED PAY DEPARTMENT: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4. IF THAT PROVISION IS APPLICABLE TO HIM. YOU EXPRESS DOUBT AS TO WHETHER THE CLAIMANT IS ENTITLED TO THE ADJUSTMENT FOR THE PERIOD IN QUESTION UNDER APPLICATION OF THE DOCTRINE OF RES JUDICATA. YOUR LETTER WILL BE TREATED AS A REQUEST FOR AN ADVANCE DECISION. WHEN HE WAS TRANSFERRED TO THE FLEET RESERVE IN HIS ENLISTED STATUS AND RELEASED FROM ACTIVE DUTY. HE WAS TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST AND ADVANCED TO THE GRADE OF LIEUTENANT (JG) ON THE BASIS OF SERVICE PERFORMED IN THAT GRADE AS A MEMBER OF THE NAVAL RESERVE FORCE DURING WORLD WAR I. WHILE SERVING ON ACTIVE DUTY AFTER RETIREMENT HE WAS GIVEN TEMPORARY APPOINTMENTS IN VARIOUS OFFICER GRADES.

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B-141450, APR. 28, 1965

TO COMMANDING OFFICER, U.S. NAVY FINANCE CENTER, RETIRED PAY DEPARTMENT:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4, 1965, XHA:65:40, 37265, FORWARDING TO THE CLAIMS DIVISION OF OUR OFFICE FOR CERTIFICATION A VOUCHER IN FAVOR OF COMMANDER CHARLES E. LOFGREN, USN, RETIRED, COVERING AN ADJUSTMENT IN RETIRED PAY FOR THE PERIOD MARCH 10, 1964, TO OCTOBER 2, 1964, BETWEEN THE RATE HE ACTUALLY RECEIVED AND THE RATE COMPUTED AT 75 PERCENT OF THE PAY OF HIS GRADE TO WHICH HE WOULD BE ENTITLED UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 368, IF THAT PROVISION IS APPLICABLE TO HIM. YOU EXPRESS DOUBT AS TO WHETHER THE CLAIMANT IS ENTITLED TO THE ADJUSTMENT FOR THE PERIOD IN QUESTION UNDER APPLICATION OF THE DOCTRINE OF RES JUDICATA. YOUR LETTER WILL BE TREATED AS A REQUEST FOR AN ADVANCE DECISION.

THE RECORD SHOWS THAT CHARLES E. LOFGREN FIRST ENLISTED IN THE UNITED STATES NAVY ON JULY 11, 1911, SERVED CONTINUOUSLY UNTIL JANUARY 10, 1927, WHEN HE WAS TRANSFERRED TO THE FLEET RESERVE IN HIS ENLISTED STATUS AND RELEASED FROM ACTIVE DUTY. ON DECEMBER 1, 1939, HE WAS TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST AND ADVANCED TO THE GRADE OF LIEUTENANT (JG) ON THE BASIS OF SERVICE PERFORMED IN THAT GRADE AS A MEMBER OF THE NAVAL RESERVE FORCE DURING WORLD WAR I. HE SUBSEQUENTLY SERVED ON ACTIVE DUTY FROM APRIL 24, 1942, TO JUNE 30, 1947, AND FROM SEPTEMBER 22, 1947, TO NOVEMBER 14, 1947. WHILE SERVING ON ACTIVE DUTY AFTER RETIREMENT HE WAS GIVEN TEMPORARY APPOINTMENTS IN VARIOUS OFFICER GRADES, THE HIGHEST GRADE IN WHICH HE SERVED SATISFACTORILY BEING THAT OF COMMANDER. ACCORDINGLY HIS RETIRED PAY ENTITLEMENT HAS BEEN ESTABLISHED ON THE BASIS OF HIS TEMPORARY GRADE OF COMMANDER.

COMMANDER LOFGREN, AS ONE OF THE PLAINTIFFS IN THE CASE OF BARNES, ET AL. V. UNITED STATES, CT.CL. NO. 500-59, SUED FOR AN ADJUSTMENT IN RETIRED PAY UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT AND JUDGMENT WAS ENTERED IN HIS FAVOR ON OCTOBER 2, 1964, BASED SOLELY ON DEFENDANT'S ADMISSION OF LIABILITY. THE JUDGMENT ALLOWED THE ADJUSTMENT IN QUESTION FOR THE PERIOD JULY 13, 1957, TO MARCH 9, 1964, INCLUSIVE, AND ENTITLEMENT TO THE SAME ADJUSTMENT FOR THE PERIOD MARCH 10, 1964, TO OCTOBER 2, 1964, IS THE SUBJECT OF YOUR LETTER OF FEBRUARY 4, 1965.

THE JUDGMENT ENTERED OCTOBER 2, 1964, STATES, IN PART, AS FOLLOWS:

"ON AUGUST 7, 1964, THE TRIAL COMMISSIONER OF THIS COURT FILED HIS MEMORANDUM REPORT RECOMMENDING THAT IN ACCORDANCE WITH THE FOREGOING, JUDGMENT BE ENTERED FOR PLAINTIFF LOFGREN (16) IN THE SUM OF $12,696.67, FOR THE PERIOD FROM JULY 13, 1957, THROUGH MARCH 9, 1964, WITHOUT PREJUDICE TO ANY CLAIM OF SUCH PLAINTIFF FOR RETIRED PAY ACCRUING SUBSEQUENT TO MARCH 9, 1964. PLAINTIFF, ON AUGUST 17, 1964, FILED AN OBJECTION TO THE TRIAL COMMISSIONER'S MEMORANDUM REPORT AND RECOMMENDATION FOR ENTRY OF JUDGMENT, TO WHICH DEFENDANT FILED ITS RESPONSE. UPON CONSIDERATION THEREOF, THE RECOMMENDATION OF THE TRIAL COMMISSIONER IS ADOPTED BY THE COURT.'

IN VIEW OF THE SPECIFIC WORDING QUOTED ABOVE THERE IS NO BASIS FOR HOLDING THAT THE JUDGMENT PRECLUDES CONSIDERATION OF ANY CLAIM FILED ON BEHALF OF COMMANDER LOFGREN FOR ANY PERIOD AFTER MARCH 9, 1964. SEE ARMSTRONG, ET AL. (HERBERT) V. UNITED STATES, 155 CT.CL. 177 (1961).

THE ADMISSION OF LIABILITY IN COMMANDER LOFGREN'S CASE WAS BASED ON THE DECISION IN THE CASE OF HOAG, ET AL. (QUEENEY) V. UNITED STATES, CT.CL. NO. 544-59, DATED JUNE 7, 1963, WHEREIN THE COURT HELD THAT A RETIRED ENLISTED FLEET RESERVIST, WHO SERVED UNDER CIRCUMSTANCES SOMEWHAT SIMILAR TO THOSE OF COMMANDER LOFGREN, BECAME ENTITLED TO HAVE HIS RETIRED PAY COMPUTED UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT UPON RELEASE OR "RE-RETIREMENT" FROM A PERIOD OF ACTIVE SERVICE AFTER RETIREMENT. AT THE PRESENT TIME WE ARE NOT FOLLOWING THE QUEENEY CASE BECAUSE THE COURT'S OPINION IN THAT CASE IS NOT SUFFICIENTLY CLEAR TO PERMIT FORMULATION OF SPECIFIC RULES FOR THE SETTLEMENT OF OTHER SIMILAR CASES. MANY PERTINENT QUESTIONS WERE NOT RESOLVED BY THE COURT. FOR EXAMPLE, WOULD THE SAME CONCLUSION BE REACHED IN ANOTHER SIMILAR CASE WHERE THE ACTIVE DUTY PERFORMED WAS NOT EXTENDED ACTIVE DUTY, WHERE ONLY TEMPORARY DUTY FOR TRAINING WAS PERFORMED OR WHERE ONLY TEMPORARY DUTY FOR TRAINING FOR ONE DAY WAS PERFORMED.

WHILE THE ENTRY OF JUDGMENT SOLELY ON THE BASIS OF AN ADMISSION OF LIABILITY OR STIPULATION OF THE PARTIES ORDINARILY DOES NOT CONSTITUTE A JUDICIAL DETERMINATION OF THE ISSUES INVOLVED AND THEREFORE DOES NOT RENDER RES JUDICATA THE MATTER OF PLAINTIFF'S ENTITLEMENT, IN VIEW OF THE PARTICULAR FACTS AND CIRCUMSTANCES IN WHICH THE ADMISSION OF LIABILITY WAS ENTERED IN THE LOFGREN CASE, HE MAY BE ALLOWED THE ADJUSTMENT IN QUESTION FOR THE PERIOD MARCH 10, 1964, TO OCTOBER 2, 1964. UPON COMPLETION OF THE VOUCHER BY OUR CLAIMS DIVISION IT WILL BE FORWARDED TO YOUR OFFICE APPROVED FOR PAYMENT.

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