B-135719, SEP. 16, 1963, 43 COMP. GEN. 266

B-135719, SEP. 16, 1963, 43 COMP. GEN. 266

COURTS - JUDGMENTS, DECREES, ETC. - RES JUDICATA - JUDGMENT BASED ON STIPULATION - PERIODS NOT COVERED BY JUDGMENT AN OFFICER WHOSE TITLE III RETIRED PAY (10 U.S.C. 1331-1337) IS COMPUTED ON 9.18 YEARS OF SERVICE FOR PERCENTAGE PURPOSES IN ESTABLISHING THE AMOUNT DUE HIM UNDER BOWMAN, ET AL. V. UNITED STATES, CT.CL. NO. 108-58, DATED NOVEMBER 26, 1958--- A STIPULATED JUDGMENT--- BUT WHOSE RETIRED PAY FOR THE PERIOD MAY 1, 1960, TO APRIL 30, 1963, IS COMPUTED ON 9.16 YEARS OF SERVICE DUE TO A CORRECTED DD FORM 424, INFORMATION FOR RETIREMENT PAY, AND AMENDED RETIREMENT ORDERS SHOWING HIS RETIREMENT EFFECTIVE AS OF SEPTEMBER 1, 1952, RATHER THAN OCTOBER 1, 1952, IS NOT ENTITLED, EFFECTIVE MAY 1, 1960, TO THE DIFFERENCE IN THE RATE OF RETIRED PAY COMPUTED ON 9.18 RATHER THAN 9.16 YEARS OF SERVICE FOR PERCENTAGE PURPOSES UNDER THE DOCTRINE OF "ESTOPPEL BY JUDGMENT" OR ,COLLATERAL ESTOPPEL," THE COURT IN THE STIPULATED JUDGMENT NOT HAVING PASSED UPON THE LEGAL MERITS OF THE OFFICER'S RETIRED STATUS FOR ANY PERIOD SUBSEQUENT TO THE PERIOD COVERED BY THE JUDGMENT, THE SUBSEQUENT REDUCTION OF THE PERCENTAGE FACTOR FROM 9.18 TO 9.16 YEARS OF SERVICE IN THE COMPUTATION OF THE OFFICER'S RETIRED PAY WAS PROPER.

TO LIEUTENANT COLONEL J. L. CLANCY, DEPARTMENT OF THE ARMY, SEPTEMBER 16, 1963:

REFERENCE IS MADE TO YOUR LETTER OF MAY 21, 1963, REQUESTING AN ADVANCE DECISION IN THE CASE OF COLONEL RALPH W. HUFFERD, U.S. ARMY RESERVE, RETIRED, CONCERNING THE PROPOSED PAYMENT ON A VOUCHER STATED IN HIS FAVOR TOTALING $14.76, REPRESENTING THE DIFFERENCE IN THE RATE OF RETIRED PAY COMPUTED ON 9.18 RATHER THAN 9.16 YEARS OF SERVICE FOR THE PERIOD MAY 1, 1960, TO APRIL 30, 1963, INCLUSIVE. YOUR REQUEST WAS FORWARDED HERE WITH FIRST INDORSEMENT DATED JULY 15, 1963, FROM THE OFFICE, CHIEF OF FINANCE, UNDER D.O. NO. A-717 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT ON HIS 60TH BIRTHDAY, AUGUST 5, 1952, COLONEL HUFFERD BECAME ENTITLED TO RECEIVE RETIRED PAY UNDER THE PROVISIONS OF TITLE III, ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1087-1091, NOW CODIFIED IN 10 U.S.C. 1331-1337. HE WAS PLACED ON THE TITLE III RETIRED LIST ON SEPTEMBER 30, 1952, IN THE GRADE OF COLONEL WITH 8.87 YEARS OF SERVICE FOR PERCENTAGE PURPOSES. SEVERAL SUBSEQUENT ADJUSTMENTS HAVE BEEN MADE IN HIS RETIRED PAY ACCOUNT AND THE YEARS OF SERVICE FACTOR FOR PERCENTAGE PURPOSES HAS BEEN INCREASED (REFLECTING SUCCEEDING RECOMPUTATIONS OF THE TOTAL MILITARY SERVICE DEEMED TO BE CREDITABLE IN THE COMPUTATION OF HIS TITLE III RETIRED PAY) FROM 8.87 TO 9.10, TO 9.15, TO 9.16, AND FINALLY TO 9.18 IN ESTABLISHING THE AMOUNT DUE HIM UNDER THE JUDGMENT RENDERED IN HIS FAVOR ON NOVEMBER 26, 1958, AS PLAINTIFF NO. 2 IN THE CASE OF BOWMAN, ET AL. V. UNITED STATES, CT.CL. NO. 108-58.

YOU STATE THAT COLONEL HUFFERD'S RETIRED PAY ACCOUNT WAS AGAIN RECOMPUTED EFFECTIVE FROM MAY 1, 1960, ON THE BASIS OF 9.16 YEARS OF SERVICE FOR PERCENTAGE PURPOSES AND 27 YEARS, 4 MONTHS AND 14 DAYS TOTAL SERVICE FOR BASIC PAY PURPOSES DUE TO RECEIPT IN YOUR OFFICE OF A CORRECTED DD FORM 424, INFORMATION FOR RETIREMENT PAY, AND AMENDED RETIREMENT ORDERS SHOWING HIS RETIREMENT EFFECTIVE AS OF SEPTEMBER 1, 1952. COLONEL HUFFERD'S ENTITLEMENT TO TITLE III RETIRED PAY EFFECTIVE FROM SEPTEMBER 1, 1952, RATHER THAN OCTOBER 1, 1952, ACCORDS WITH THE ANSWER TO QUESTION 2 IN OUR DECISION OF AUGUST 25, 1958, 38 COMP. GEN. 146, 150.

YOU FURTHER STATE THAT THE RECOMPUTATION OF COLONEL HUFFERD'S RETIRED PAY EFFECTIVE FROM MAY 1, 1960,"MAY BE IN ERROR IN VIEW OF THE JUDGMENT IN THE COURT OF CLAIMS USING YEARS OF SERVICE FOR PERCENTAGE PURPOSES AS 9.18 RATHER THAN 9.16.' THE ISSUE THUS PRESENTED IS WHETHER THE ADJUSTMENT MADE IN COLONEL HUFFERD'S RETIRED PAY STATUS ON THE BASIS OF 9.16 YEARS OF SERVICE FOR PERCENTAGE PURPOSES EFFECTIVE FROM MAY 1, 1960, WAS PROPER OR WHETHER UNDER THE DOCTRINE OF ,ESTOPPEL BY JUDGMENT"THE COMPUTATION OF COLONEL HUFFERD'S RETIRED PAY FOR THE PERIOD FOLLOWING THE PERIOD COVERED BY THE JUDGMENT OF NOVEMBER 26, 1958, IS REQUIRED TO BE BASED ON 9.18 YEARS OF SERVICE.

AS INDICATED ABOVE, COLONEL HUFFERD WAS PLAINTIFF NO. 2 IN THE CASE OF BOWMAN, ET AL. V. UNITED STATES, CT.CL. NO. 108-58. ON JULY 22, 1958, THE DEPARTMENT OF JUSTICE FILED AN ADMISSION OF LIABILITY TO THE EFFECT THAT THE CLAIM OF RALPH W. HUFFERD (AND THE SIMILAR CLAIMS OF TWO OTHER PLAINTIFFS ON THE SAME PETITION) "ARE CONTROLLED BY THIS COURT'S DECISION IN SARLES V. UNITED STATES, 141 CT.CL. 709, AND THAT THE FOREGOING PLAINTIFFS ARE ENTITLED TO RECOVER HEREIN IN ACCORDANCE THEREWITH.' THE MOTION FOR CALL FOR COMPUTATION OF THE AMOUNT DUE COLONEL HUFFERD UNDER THE ADMISSION OF LIABILITY COVERED THE PERIOD APRIL 2, 1953, TO DECEMBER 14, 1956, INCLUSIVE. THE JUDGMENT ENTERED IN COLONEL HUFFERD'S FAVOR ON NOVEMBER 26, 1958, IN THE AMOUNT OF $7,489.08 COVERED THE PERIOD APRIL 2, 1953, TO DECEMBER 13, 1956, INCLUSIVE, ONLY, SINCE THE RECORD SHOWED THAT HE HAD BEEN PAID RETIRED PAY BY THE DEPARTMENT OF THE ARMY EFFECTIVE FROM DECEMBER 14, 1956.

IT IS CLEAR THAT THE JUDGMENT OF NOVEMBER 26, 1958, IN FAVOR OF COLONEL HUFFERD RESTS ENTIRELY ON THE ADMISSION OF LIABILITY FILED IN THAT CASE. UNDER THE DOCTRINE OF RES JUDICATA THAT JUDGMENT IS BINDING UPON THE DEFENDANT (GOVERNMENT) ONLY WITH RESPECT TO THE PERIOD SET FORTH IN THE PETITION NO. 108-58, I.E., THE PERIOD APRIL 2, 1953, TO DECEMBER 14, 1956. THE GOVERNMENT IS NOT BOUND, HOWEVER, UNDER THE DOCTRINE OF "ESTOPPEL BY JUDGMENT" OR "COLLATERAL ESTOPPEL" WITH RESPECT TO ANY PART OF THE PERIOD SUBSEQUENT TO DECEMBER 14, 1956, SINCE THE JUDGMENT WAS NOT A JUDICIAL DETERMINATION OF THE LEGAL MERITS OF THE CASE. SEE ABARR, ET AL. V. UNITED STATES, 139 CT.CL. 748 (1957). COMPARE 35 COMP. GEN. 339, 341; 36 COMP. GEN. 489 AND 501. ALSO, SEE 39 COMP. GEN. 797 AND THE DECISION OF JUNE 6, 1962, IN THAT SAME CASE, WARTHEN V. UNITED STATES, 157 CT.CL. 798.

THE COURT IN ENTERING THE STIPULATED JUDGMENT OF NOVEMBER 26, 1958, UNDER COURT OF CLAIMS PETITION NO. 108-58, DID NOT PASS UPON THE LEGAL MERITS OF COLONEL HUFFERD'S RETIRED PAY STATUS AND, THEREFORE, NO BASIS IS PRESENTED TO APPLY THE DOCTRINE OF "ESTOPPEL BY JUDGMENT" OR ,COLLATERAL ESTOPPEL" TO ANY PART OF THE PERIOD SUBSEQUENT TO THE PERIOD COVERED BY THAT JUDGMENT. ACCORDINGLY, SINCE YOUR RECORDS SHOW THAT THE MILITARY SERVICE CREDITABLE TO COLONEL HUFFERD ENTITLES HIM TO A PERCENTAGE FACTOR OF 9.16 ONLY, THEN THE ADJUSTMENT MADE IN HIS RETIRED PAY BY REDUCING THE PERCENTAGE FACTOR FROM 9.18 TO 9.16 EFFECTIVE FROM MAY 1, 1960, WAS PROPER, IRRESPECTIVE OF THE FACT THAT A PERCENTAGE FACTOR OF 9.18 WAS USED (ON THE BASIS OF THE STATEMENTS OF MILITARY SERVICE THEN BEFORE THIS OFFICE) IN DETERMINING THE AMOUNT DUE HIM UNDER THE JUDGMENT OF NOVEMBER 26, 1958.

PAYMENT ON THE VOUCHER PRESENTED IS NOT AUTHORIZED AND THE VOUCHER AND SUPPORTING PAPERS THEREWITH WILL BE RETAINED HERE.