A-21682, APRIL 11, 1928, 7 COMP. GEN. 658

A-21682: Apr 11, 1928

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CLAIMS - RES JUDICATA - PAY AND ALLOWANCES - ARMY OFFICERS WHERE AN OFFICER OF THE ARMY BROUGHT SUIT IN THE COURT OF CLAIMS FOR THE DIFFERENCE IN PAY AND ALLOWANCES BETWEEN THE GRADES OF CAPTAIN AND COLONEL AND THE FINAL JUDGMENT WAS ADVERSE TO RECOVERY. THE CASE IS RES JUDICATA AND THE OFFICER MAY NOT THEREAFTER ASSERT IN THE GENERAL ACCOUNTING OFFICE A CLAIM BASED ON THE SAME ISSUE. THE ONLY DIFFERENCE BEING THAT THE LATTER CLAIM IS FOR A LONGER PERIOD OF TIME. CLAIMANT WAS EMPLOYED AS A CONTRACT DENTAL SURGEON UNDER SECTION 18 OF THE ACT OF FEBRUARY 2. WHEN HE WAS PLACED ON THE RETIRED LIST WITH THE RANK OF CAPTAIN. HE WAS DETAILED TO ACTIVE DUTY AS PROFESSOR OF MILITARY SCIENCE AND TACTICS.

A-21682, APRIL 11, 1928, 7 COMP. GEN. 658

CLAIMS - RES JUDICATA - PAY AND ALLOWANCES - ARMY OFFICERS WHERE AN OFFICER OF THE ARMY BROUGHT SUIT IN THE COURT OF CLAIMS FOR THE DIFFERENCE IN PAY AND ALLOWANCES BETWEEN THE GRADES OF CAPTAIN AND COLONEL AND THE FINAL JUDGMENT WAS ADVERSE TO RECOVERY, THE CASE IS RES JUDICATA AND THE OFFICER MAY NOT THEREAFTER ASSERT IN THE GENERAL ACCOUNTING OFFICE A CLAIM BASED ON THE SAME ISSUE, THE ONLY DIFFERENCE BEING THAT THE LATTER CLAIM IS FOR A LONGER PERIOD OF TIME.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 11, 1928:

MAJ. CLARENCE E. LAUDERDALE, UNITED STATES ARMY, RETIRED, HAS REQUESTED REVIEW OF SETTLEMENT NO. 0155911, DATED NOVEMBER 18, 1927, DISALLOWING HIS CLAIM FOR THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF A COLONEL AND THE PAY AND ALLOWANCES RECEIVED BY HIM FROM DECEMBER 10, 1921, TO OCTOBER 31, 1927.

CLAIMANT WAS EMPLOYED AS A CONTRACT DENTAL SURGEON UNDER SECTION 18 OF THE ACT OF FEBRUARY 2, 1901, 31 STAT. 752, FROM APRIL 15, 1901, TO JUNE 20, 1911, ON WHICH LATTER DATE HE ACCEPTED A COMMISSION AS DENTAL SURGEON WITH RANK OF FIRST LIEUTENANT, AND SERVED IN THE DENTAL CORPS OF THE ARMY UNTIL MARCH 27, 1917, WHEN HE WAS PLACED ON THE RETIRED LIST WITH THE RANK OF CAPTAIN. BY SPECIAL ORDERS OF THE WAR DEPARTMENT ISSUED BY DIRECTION OF THE PRESIDENT, WITH HIS CONSENT, HE WAS DETAILED TO ACTIVE DUTY AS PROFESSOR OF MILITARY SCIENCE AND TACTICS, ST. LOUIS UNIVERSITY DENTAL SCHOOL, ST. LOUIS, MO., AND WAS ORDERED TO PROCEED WITHOUT DELAY TO CARLISLE BARRACKS, CARLISLE, PA., AND REPORT IN PERSON TO THE COMMANDANT, MEDICAL FIELD SERVICE SCHOOL, FOR TEMPORARY DUTY FOR THE PURPOSE OF PURSUING A COURSE OF INSTRUCTION AND UPON COMPLETION OF THIS DUTY TO PROCEED TO ST. LOUIS FOR DUTY TO WHICH DETAILED. PURSUANT TO THIS ORDER CLAIMANT PROCEEDED JUNE 3, 1921, TO CARLISLE BARRACKS, AND UPON COMPLETION OF THE TEMPORARY DUTY THERE DIRECTED HE PROCEEDED TO ST. LOUIS WHERE HE REPORTED JULY 22, 1921, AND SERVED THEREAT AS PROFESSOR OF MILITARY SCIENCE AND TACTICS, CONTINUOUSLY UNTIL AUGUST 15, 1926, WHEN HE WAS RELIEVED FROM ACTIVE DUTY.

AT THE TIME OF CLAIMANT'S RETIREMENT, MARCH 27, 1917, HE IS SHOWN TO HAVE BEEN NUMBER THREE IN THE ORDER OF SENIORITY AMONG OFFICERS OF THE DENTAL CORPS. UNDER THE ACT OF OCTOBER 6, 1917, 40 STAT. 397, THE TWO OFFICERS OF THE DENTAL CORPS WHO HAD BEEN SENIOR TO HIM AT THE TIME OF HIS RETIREMENT AND SEVERAL WHO HAD RANKED BELOW HIM, WERE PROMOTED TO THE GRADE OF COLONEL, IN THE ORDER OF SENIORITY, WITH RANK FROM DATE OF THE ACT. IT IS CONTENDED BY CLAIMANT THAT HAD HE REMAINED ON ACTIVE DUTY FOR A PERIOD OF SIX MONTHS AND NINE DAYS BEYOND THE DATE OF HIS RETIREMENT HE WOULD HAVE ATTAINED, IN DUE COURSE OF PROMOTION, THE RANK OF COLONEL, AND HE CLAIMS THAT BY VIRTUE OF SECTION 24 OF THE ACT OF JUNE 3, 1916, 39 STAT. 183, AS REENACTED IN SECTION 127A OF THE ACT OF JUNE 4, 1920, 41 STAT. 786, HE IS ENTITLED TO ADVANCEMENT TO THE GRADE OF COLONEL AFTER HE HAD SERVED UNDER HIS DETAIL TO ACTIVE DUTY FOR A PERIOD OF SIX MONTHS AND NINE DAYS, OR SINCE DECEMBER 10, 1921.

THE MATTER OF CLAIMANT'S ADVANCEMENT ON THE RETIRED LIST WAS CONSIDERED BY THIS OFFICE IN THE DECISION OF AUGUST 11, 1922, 2 COMP. GEN. 107, IN WHICH IT WAS HELD THAT HIS DETAIL AS PROFESSOR OF MILITARY SCIENCE AND TACTICS WAS A SPECIAL FORM OF DUTY PRESCRIBED BY THE STATUTE, SEMIMILITARY IN CHARACTER, NOT AUTHORIZED TO BE COUNTED AS ACTIVE MILITARY DUTY ENTITLING TO PROMOTION UNDER THE ACT OF JUNE 4, 1920. SUCH DUTY PERFORMED PRIOR TO JULY 1, 1922, WAS, HOWEVER, THEREAFTER AUTHORIZED TO BE COUNTED FOR LONGEVITY PAY PURPOSES AND FOR PURPOSES OF PROMOTION BY SECTION 4 OF THE ACT OF MARCH 3, 1925, 43 STAT. 1100. IT IS ON THE BASIS OF THIS ACT THAT CLAIMANT IS NOW URGING THE ALLOWANCE OF HIS CLAIM.

ON APRIL 8, 1924, CLAIMANT FILED HIS CLAIM IN THE COURT OF CLAIMS FOR THE DIFFERENCE BETWEEN PAY AND ALLOWANCES AS CAPTAIN AND COLONEL, AND FOLLOWING THE PASSAGE OF THE ACT OF MARCH 3, 1925, BOTH THE ATTORNEYS FOR THE GOVERNMENT AND FOR THE CLAIMANT MADE SPECIFIC REFERENCE THERETO IN BRIEFS FILED WITH THE COURT. THE DECISION OF THE COURT, RENDERED MAY 3, 1926, WHICH BECAME FINAL, WAS THAT CLAIMANT'S PETITION SHOULD BE DISMISSED, AND IT WAS SO ORDERED.

SECTION 179 OF THE JUDICIAL CODE, 36 STAT. 1141, PROVIDES:

ANY FINAL JUDGMENT AGAINST THE CLAIMANT ON ANY CLAIM PROSECUTED AS PROVIDED IN THIS CHAPTER SHALL FOREVER BAR ANY FURTHER CLAIM OR DEMAND AGAINST THE UNITED STATES ARISING OUT OF THE MATTERS INVOLVED IN THE CONTROVERSY.

THIS CLAIM INVOLVES THE IDENTICAL ISSUES AND SUBJECT MATTER CONSIDERED IN THE CASE DECIDED BY THE COURT OF CLAIMS, WITH THE EXCEPTION THAT HE NOW SEEKS PAY AND ALLOWANCES FOR A LONGER PERIOD OF TIME. UNDER THE ABOVE- CITED ACT IT IS NOW RES JUDICATA, AND FURTHER CONSIDERATION BY THIS OFFICE IS BARRED BY THE COURT OF CLAIMS DECISION. RAVESIES V. UNITED STATES, 21 CT.CLS. 243; UNITED STATES V. MOSER, 266 U.S. 236; CHEROKEE NATION V. UNITED STATES, 270 U.S. 476, AND AS TO A LONGER PERIOD THAN THE FIRST, STRAUS V. AMERICAN PUBLISHERS ASSN., 201 FED.REP. 306, IN CONNECTION WITH WHICH WRIT OF ERROR WAS DISMISSED, 235 U.S. 716. UPON REVIEW THE SETTLEMENT MUST BE AND IS SUSTAINED.