B-138774, DEC. 28, 1961

B-138774: Dec 28, 1961

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ATTORNEYS AT LAW: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 10. 1950 (THE DATE HE WAS PLACED ON THE RETIRED LIST). JOHNSON'S CLAIM FOR SUCH RETIRED PAY WAS DISALLOWED BY THE CLAIMS DIVISION OF THIS OFFICE IN SETTLEMENT DATED JANUARY 6. WOULD HAVE BEEN RES JUDICATA UP TO AND INCLUDING THE DATE THEREOF. THE RECORD ALSO SHOWS THAT HE IS PLAINTIFF NO. 1 IN THE CASE OF JOHNSON V. IN WHICH ADDITIONAL RETIRED PAY IS CLAIMED ON THE BASIS OF THE GRADE OF COMMISSIONED WARRANT OFFICER FOR THE PERIOD FEBRUARY 1. AN ADDITIONAL CLAIM WAS ADVANCED BY MR. IT IS UNDERSTOOD THAT THESE MATTERS STILL REMAIN PENDING BEFORE THE COURT UNDER PETITION NO. 68-59. IT IS NOT OUR PRACTICE TO CONSIDER CLAIMS THAT ARE INVOLVED IN LITIGATION PENDING BEFORE THE COURTS.

B-138774, DEC. 28, 1961

TO KING AND KING, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 10, 1961, CONCERNING THE CLAIM OF VICTOR WILLIAM JOHNSON, U.S. NAVY, RETIRED, FOR INCREASED RETIRED PAY FOR THE PERIOD FEBRUARY 1, 1950 (THE DATE HE WAS PLACED ON THE RETIRED LIST), TO DECEMBER 1, 1953, COMPUTED ON THE GRADE OF COMMISSIONED WARRANT OFFICER, BELIEVED PAYABLE IN VIEW OF THE HOLDING IN THE CASE OF HERBERT, PLAINTIFF NO. 6 IN ARMSTRONG, ET AL. V. UNITED STATES, CT.CL. 431-56, DECIDED JULY 19, 1961.

THE RECORD SHOWS THAT MR. JOHNSON'S CLAIM FOR SUCH RETIRED PAY WAS DISALLOWED BY THE CLAIMS DIVISION OF THIS OFFICE IN SETTLEMENT DATED JANUARY 6, 1959, BY REASON OF THE BAR OF RES JUDICATA RESULTING FROM THE JUDGMENT ENTERED IN HIS FAVOR ON DECEMBER 1, 1953, AS PLAINTIFF NO. 26 IN THE CASE OF ANAMA, ET AL. V. UNITED STATES, CT.CL. NO. 283 53.

AS TO THE EFFECT OF THE HERBERT CASE ON THIS MATTER, SEE OUR LETTER TO YOU OF SEPTEMBER 11, 1961, B-128594 (IN THE CASE OF CHARLIE D. HOWARD, U.S. NAVY, RETIRED), IN WHICH WE POINTED OUT THAT THE LANGUAGE OF THE OPINION OF JULY 19, 1961, IN THE HERBERT CASE AND THE COURT'S ACTION THEREIN AMENDING THE PRIOR JUDGMENT OF APRIL 7, 1953 (RENDERED IN FAVOR OF HERBERT IN A PRIOR SANDERS TYPE CASE),"TO ACCORD WITH THE STIPULATION" INDICATES QUITE CLEARLY THAT UNLESS SO AMENDED BY THE COURT, THE JUDGMENT OF APRIL 7, 1953, WOULD HAVE BEEN RES JUDICATA UP TO AND INCLUDING THE DATE THEREOF. THE SAME CONCLUSION MUST BE REACHED WITH RESPECT TO THE CLAIM OF VICTOR WILLIAN JOHNSON. THEREFORE, IN THE ABSENCE OF AN AMENDMENT BY THE COURT OF THE JUDGMENT OF DECEMBER 1, 1953, REMOVING THE BAR OF RES JUDICATA AS TO THE PERIOD PRECEDING DECEMBER 2, 1953, NO FURTHER ACTION IN THE MATTER MAY BE TAKEN BY THIS OFFICE.

CONCERNING MR. JOHNSON'S ALTERNATE CLAIM FOR RETIRED PAY AS AN ENLISTED MAN FROM FEBRUARY 1 TO OCTOBER 31 (19), 1950, THE RECORD ALSO SHOWS THAT HE IS PLAINTIFF NO. 1 IN THE CASE OF JOHNSON V. UNITED STATES, CT.CL.NO. 68-59, FILED FEBRUARY 11, 1959, IN WHICH ADDITIONAL RETIRED PAY IS CLAIMED ON THE BASIS OF THE GRADE OF COMMISSIONED WARRANT OFFICER FOR THE PERIOD FEBRUARY 1, 1953, TO DECEMBER 2 (1), 1953, INCLUSIVE, AND THAT BY FIRST AMENDMENT TO THIS PETITION FILED MAY 25, 1960, AN ADDITIONAL CLAIM WAS ADVANCED BY MR. JOHNSON UNDER THE ACT OF MAY 27, 1954, 68 STAT. 140, FOR ENLISTED RETIRED PAY FOR THE PERIOD FROM THE DATE OF HIS ADVANCEMENT ON THE RETIRED LIST TO THE GRADE OF COMMISSIONED WARRANT OFFICER (FEBRUARY 1, 1950), TO THE DATE OF HIS REVERSION TO AN ENLISTED STATUS (OCTOBER 20, 1950). IT IS UNDERSTOOD THAT THESE MATTERS STILL REMAIN PENDING BEFORE THE COURT UNDER PETITION NO. 68-59. IT IS NOT OUR PRACTICE TO CONSIDER CLAIMS THAT ARE INVOLVED IN LITIGATION PENDING BEFORE THE COURTS.