B-107869, AUG. 15, 1963

B-107869: Aug 15, 1963

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TO KING AND KING: REFERENCE IS MADE TO YOUR LETTER OF MAY 24. WE ARE ADVISED. COZZA WAS TRANSFERRED TO THE FLEET NAVAL RESERVE IN 1936. HE WAS PLACED ON THE RETIRED LIST OF THE REGULAR NAVY EFFECTIVE DECEMBER 1. COZZA'S DISABILITIES WERE RATED BY THE DEPARTMENT OF THE NAVY AT ZERO "0" PERCENTAGE. "A FURTHER REVIEW OF YOUR OFFICIAL RECORDS INDICATES THAT THE PHYSICAL DISABILITY WHICH RESULTED IN YOUR TRANSFER TO THE RETIRED LIST WAS NOT INCURRED WHILE IN RECEIPT OF BASIC PAY. * * *.'. HE WAS ALSO NOTIFIED THAT THE SECTION 411 ELECTION WHICH HE HAD MADE ON JANUARY 22. WAS CANCELLED. SINCE HE COULD NOT QUALIFY FOR DISABILITY RETIRED PAY UNDER TITLE IV OF THE 1949 LAW AND THAT HE WAS "CURRENTLY IN RECEIPT OF MAXIMUM RETIRED PAY" AS PRESCRIBED IN SECTION 511 OF THE 1949 LAW.

B-107869, AUG. 15, 1963

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTER OF MAY 24, 1963, REQUESTING RECONSIDERATION OF THE ACTION TAKEN IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED APRIL 19, 1962, DENYING THE CLAIM FOR INCREASED RETIRED PAY BELIEVED DUE UNDER THE RULE OF THE SELIGA DECISION OF MARCH 6, 1957, 137 CT.CL. 710, IN THE CASE OF FRANK LOUIS COZZA, A RETIRED ENLISTED MEMBER OF THE UNITED STATES NAVY.

MR. COZZA HAS A SUIT NOW PENDING IN THE COURT OF CLAIMS ON PETITION NO. 308-60 FOR INCREASED RETIRED PAY UNDER THE SELIGA RULE. WE ARE ADVISED, INFORMALLY, THAT THE DEPARTMENT OF JUSTICE CONTINUES TO HOLD IN ESCROW YOUR MOTION TO DISMISS THAT SUIT. ALSO, AS INDICATED IN THE SETTLEMENT OF APRIL 19, 1962, THE BAR OF RES JUDICATA ARISES AS TO ANY PORTION OF THE CLAIM NOW PRESENTED HERE WHICH PRECEDES APRIL 4, 1957, BY REASON OF THE DECISION OF THE COURT OF CLAIMS ON APRIL 3, 1957, DISMISSING ON THE MERITS MR. COZZA'S CLAIM AS PLAINTIFF NO. 30 IN THE CASE OF ABENGOSA, ET AL. V. UNITED STATES, COURT OF CLAIMS NO. 456-56. SEE 138 CT.CL. 869.

MR. COZZA WAS TRANSFERRED TO THE FLEET NAVAL RESERVE IN 1936. WHILE SUBSEQUENTLY SERVING ON ACTIVE DUTY DURING THE PERIOD FROM SEPTEMBER 15, 1941, TO MARCH 30, 1945, INCLUSIVE, HE WAS PLACED ON THE RETIRED LIST OF THE REGULAR NAVY EFFECTIVE DECEMBER 1, 1943, BY REASON OF PHYSICAL DISABILITY. UNDER THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 823, WHICH BECAME EFFECTIVE OCTOBER 1, 1949, MR. COZZA'S DISABILITIES WERE RATED BY THE DEPARTMENT OF THE NAVY AT ZERO "0" PERCENTAGE. AS PROVIDED IN SECTION 402 (B) OF THE 1949 LAW, 63 STAT. 820, THE ZERO PERCENTAGE FACTOR DID NOT AFFECT HIS SECTION 411 STATUS, SINCE HE HAD COMPLETED 20 YEARS OF ACTIVE SERVICE. JANUARY 22, 1951, MR. COZZA EXERCISED A SECTION 411 ELECTION TO RECEIVE RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, AT THE RATE OF $132.30 PER MONTH COMPUTED ON THE BASIS OF HIS YEARS OF ACTIVE SERVICE PURPORTEDLY IN ACCORDANCE WITH THE FORMULA PRESCRIBED IN SECTION 402 (D) (1) OF THE 1949 ACT, 63 STAT. 818.

IN OCTOBER 1951 THE DEPARTMENT OF THE NAVY NOTIFIED MR. COZZA THAT--

"A FURTHER REVIEW OF YOUR OFFICIAL RECORDS INDICATES THAT THE PHYSICAL DISABILITY WHICH RESULTED IN YOUR TRANSFER TO THE RETIRED LIST WAS NOT INCURRED WHILE IN RECEIPT OF BASIC PAY. * * *.'

HE WAS ALSO NOTIFIED THAT THE SECTION 411 ELECTION WHICH HE HAD MADE ON JANUARY 22, 1951, WAS CANCELLED, SINCE HE COULD NOT QUALIFY FOR DISABILITY RETIRED PAY UNDER TITLE IV OF THE 1949 LAW AND THAT HE WAS "CURRENTLY IN RECEIPT OF MAXIMUM RETIRED PAY" AS PRESCRIBED IN SECTION 511 OF THE 1949 LAW, 63 STAT. 829, NAMELY, RETIRED PAY COMPUTED UNDER METHOD (B) OF SECTION 511. IN A REPORT DATED FEBRUARY 19, 1962, TO OUR CLAIMS DIVISION, THE BUREAU OF NAVAL PERSONNEL, IN EFFECT, REITERATED THE SAME CONCLUSIONS.

THE RECORD SHOWS THAT MR. COZZA WAS PAID METHOD (B), SECTION 511, RETIRED PAY BY THE DEPARTMENT OF THE NAVY FOR THE PERIOD OCTOBER 1, 1949, TO MAY 31, 1961, INCLUSIVE. HIS RETIRED PAY WAS DISCONTINUED ON THE LETTER DATE FOR A CIVIL SERVICE ANNUITY. A STIPULATED JUDGMENT WAS ENTERED IN HIS FAVOR ON FEBRUARY 3, 1953, AS PLAINTIFF NO. 50 IN THE CASE OF ERNEST COLE ADAMS, ET AL. V. UNITED STATES, COURT OF CLAIMS NO. 50338, ADJUSTING HIS RETIRED PAY FOR THE PERIOD APRIL 1, 1945, TO JUNE 30, 1952, INCLUSIVE, UNDER AUTHORITY OF THE SANDERS DECISION OF JANUARY 9, 1951, 120 CT.CL. 501. THE SANDERS TYPE JUDGMENT OF FEBRUARY 3, 1953, WHICH INCLUDED AN INCREASE OF 5 PERCENT (COMPROMISE) FOR GOOD CONDUCT PAY HAD THE EFFECT OF ALLOWING MR. COZZA GREATER RETIRED PAY UNDER METHOD (A) OF SECTION 511 FOR THE PERIOD OCTOBER 1, 1949, TO JUNE 30, 1952, INCLUSIVE, THAN THAT WHICH HE WAS ENTITLED TO RECEIVE FOR THE SAME PERIOD UNDER METHOD (B) OF SECTION 511.

THE ENCLOSURES RECEIVED WITH YOUR LETTER OF MAY 24, 1963, DISCLOSE THAT MR. COZZA WAS PLACED ON THE RETIRED LIST OF THE REGULAR NAVY EFFECTIVE DECEMBER 1, 1943, BY REASON OF PHYSICAL DISABILITY, THUS CONFIRMING THE RECORD TO THAT SAME EFFECT ALREADY BEFORE THIS OFFICE. WE FIND NOTHING, HOWEVER, IN ANY OF THOSE ENCLOSURES TO SUPPORT THE STATEMENT MADE IN YOUR LETTER THAT "THE CLAIMANT WAS RETIRED FOR DISABILITIES INCURRED WHILE IN RECEIPT OF BASIC PAY," WHICH IS THE ISSUE PRESENTED FOR DETERMINATION IN THIS CASE. IN THAT CONNECTION THE COPY OF NMS FORM Y, REPORT OF PHYSICAL EXAMINATION, DETERMINATION OF MOBILIZATION CLASSIFICATION, DATED OCTOBER 11, 1943 (ONE OF THE ENCLOSURES ABOVE REFERRED TO) SUMMARIZES MR. COZZA'S DISABILITIES AND DEFECTS FOR WHICH HE WAS PLACED ON THE RETIRED LIST AS "CHRONIC SINUSITIS. GALLBLADDER DISEASE. OSTEOARTHRITIS.' UNDER GENERAL BUILD AND APPEARANCE THE ENTRY "MEDIUM-OBESE" APPEARS. OBESITY, HOWEVER, IS NOT SPECIFICALLY DENOMINATED A DEFECT OR DISABILITY IN THIS REPORT.

SINCE THE REPORT OF OCTOBER 11, 1943, REFLECTING HIS PHYSICAL CONDITION AT THAT TIME WAS THE BASIS ON WHICH THE DEPARTMENT OF THE NAVY ACTED SHORTLY AFTER IN PLACING MR. COZZA ON THE RETIRED LIST EFFECTIVE DECEMBER 1, 1943, IT WOULD SEEM TO NEGATIVE, OR AT LEAST RAISE SERIOUS DOUBTS AS TO THE LEGAL EFFECT OF THE STATEMENT MADE BY THE BUREAU OF MEDICINE AND SURGERY IN LETTER OF JANUARY 16, 1962, ADDRESSED TO OUR CLAIMS DIVISION THAT "ONE OF THE DISABILITIES FOR WHICH HE (FRANK LOUIS COZZA) WAS RETIRED, NAMELY, OBESITY, WAS INCURRED WHILE HE WAS ENTITLED TO RECEIVE BASIC PAY.' THAT SAME LETTER OF JANUARY 16, 1962, STATES THAT WHILE IN AN INACTIVE STATUS ON MAY 13, 1941, HE WAS PHYSICALLY EXAMINED AND FOUND NOT FIT TO PERFORM ACTIVE DUTY AT SEA OR ON FOREIGN SERVICE AND NOT PHYSICALLY QUALIFIED FOR ACTIVE DUTY. THE DEFECTS REPORTED WERE DEFECTIVE HEARING, DEFECTIVE VISION, 33 POUNDS OVER THE MAXIMUM WEIGHT, EPIDIDYMITIS, AND FLATFEET.

IN THESE CIRCUMSTANCES THE RECORD BEFORE THIS OFFICE MAY NOT BE CONSIDERED AS ESTABLISHING THAT MR. COZZA WAS PLACED IN THE RETIRED LIST OF THE NAVY ON DECEMBER 1, 1943, BY REASON OF A PHYSICAL DISABILITY INCURRED WHILE HE WAS IN RECEIPT OF BASIC PAY, AN ESSENTIAL REQUIREMENT TO SECURE THE BENEFITS OF THE SELIGA RULE. SEE DECISION OF JANUARY 12, 1962, IN THE CASE OF ERNEST W. GREAVES, PLAINTIFF NO. 14 IN AFLAGUE, ET AL. V. UNITED STATES, COURT OF CLAIMS NO. 212-56. ACCORDINGLY, THE DENIAL OF MR. COZZA'S CLAIM FOR SELIGA BENEFITS IN THE SETTLEMENT OF APRIL 19, 1962, IS SUSTAINED.