B-141007, DEC. 5, 1962

B-141007: Dec 5, 1962

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ATTORNEYS AT LAW: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 9. 1959 (CLAIMS FILE A 1351183) YOU WERE ADVISED THAT ACTION ON MR. A MOTION TO DISMISS THAT ACTION HAS NOW BEEN FILED WITH THE DEPARTMENT OF JUSTICE AND IS BEING HELD IN ESCROW BY THAT DEPARTMENT PENDING SATISFACTORY SETTLEMENT OF THE CLAIM BY THIS OFFICE. THE RECORD SHOWS THAT FRANK MATTHEW RUDOLPH WAS TRANSFERRED TO THE FLEET NAVAL RESERVE EFFECTIVE OCTOBER 31. HE WAS TRANSFERRED TO THE RETIRED LIST EFFECTIVE DECEMBER 1. THEN WAS ADVANCED TO THE GRADE OF COMMISSIONED WARRANT OFFICER AS PROVIDED IN SECTION 10 OF THE 1941 LAW. ALSO WAS COMPUTED ON THE ONE- THIRD BASIS FOR THE PERIOD DECEMBER 1. ON THE LATTER DATE RUDOLPH WAS IN RECEIPT OF RETIRED PAY AT THE RATE OF $143.50 A MONTH.

B-141007, DEC. 5, 1962

TO KING AND KING, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 9, 1962, FURTHER CONCERNING THE CLAIM INITIALLY SUBMITTED BY YOU IN YOUR LETTER OF SEPTEMBER 30, 1959, ON BEHALF OF MR. FRANK MATTHEW RUDOLPH, USN, RETIRED, FOR INCREASED RETIRED PAY BELIEVED DUE HIM UNDER THE RULE IN SELIGA V. UNITED STATES, 137 CT.CL. 710 (1957), OR ALTERNATIVELY, DISABILITY RETIRED PAY COMPUTED PURSUANT TO THE PROVISIONS OF SECTION 8 OF THE ACT OF JULY 24, 1941, CH. 320, 55 STAT. 604, 34 U.S.C. 350G, 1946 ED.

IN CLAIMS DIVISION LETTER DATED DECEMBER 11, 1959 (CLAIMS FILE A 1351183) YOU WERE ADVISED THAT ACTION ON MR. RUDOLPH'S CLAIM WOULD BE HELD IN ABEYANCE BY THIS OFFICE PENDING THE OUTCOME OF HIS SUIT FOR INCREASED RETIRED PAY FILED IN THE UNITED STATES COURT OF CLAIMS ON SEPTEMBER 29, 1959, IN THE CASE OF RUDOLPH V. UNITED STATES, CT.CL.NO. 410-59. A MOTION TO DISMISS THAT ACTION HAS NOW BEEN FILED WITH THE DEPARTMENT OF JUSTICE AND IS BEING HELD IN ESCROW BY THAT DEPARTMENT PENDING SATISFACTORY SETTLEMENT OF THE CLAIM BY THIS OFFICE.

THE RECORD SHOWS THAT FRANK MATTHEW RUDOLPH WAS TRANSFERRED TO THE FLEET NAVAL RESERVE EFFECTIVE OCTOBER 31, 1934, AND THAT HE SUBSEQUENTLY SERVED ON ACTIVE DUTY FROM AUGUST 28, 1940, TO JULY 20, 1945, INCLUSIVE. HE WAS TRANSFERRED TO THE RETIRED LIST EFFECTIVE DECEMBER 1, 1945, BY REASON OF PHYSICAL DISABILITY (AS PROVIDED IN SECTION 206 OF THE NAVAL RESERVE ACT OF 1938, CH. 690, 52 STAT. 1179, 34 U.S.C. 854E, 1946 ED.) AND THEN WAS ADVANCED TO THE GRADE OF COMMISSIONED WARRANT OFFICER AS PROVIDED IN SECTION 10 OF THE 1941 LAW, 55 STAT. 605, AS AMENDED BY SECTION 8/A) OF THE ACT APPROVED FEBRUARY 21, 1946, CH. 34, 60 STAT. 28, 34 U.S.C. 350I (B) (2) (1946 ED.).

THE DEPARTMENT OF THE NAVY COMPUTED RUDOLPH'S RETAINER PAY ON THE ONE- THIRD BASIS FOR THE PERIOD JULY 21, 1945, TO NOVEMBER 30, 1945, INCLUSIVE, AND HIS RETIRED PAY, BASED ON THE GRADE OF A COMMISSIONED WARRANT OFFICER WITH OVER 21 YEARS OF CREDITABLE SERVICE, ALSO WAS COMPUTED ON THE ONE- THIRD BASIS FOR THE PERIOD DECEMBER 1, 1945, TO SEPTEMBER 30, 1949, INCLUSIVE. ON THE LATTER DATE RUDOLPH WAS IN RECEIPT OF RETIRED PAY AT THE RATE OF $143.50 A MONTH. EFFECTIVE AS OF OCTOBER 1, 1949, HIS RETIRED PAY WAS INCREASED BY THE DEPARTMENT OF THE NAVY TO $160.41 PER MONTH, REPRESENTING 52-1/2 PERCENT (HIS 20 YEARS, 11 MONTHS AND 27 DAYS' ACTIVE SERVICE RESULTED IN A MULTIPLIER FACTOR OF "21" TIMES 2-1/2 PERCENT) OF $305.55, THE MONTHLY ACTIVE DUTY PAY OF A COMMISSIONED WARRANT OFFICER (W- 2) WITH OVER 18 BUT NOT OVER 22 YEARS OF CREDITABLE SERVICE BASED ON THE RATES OF PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 802.

SINCE RUDOLPH WAS PLACED ON THE RETIRED LIST DECEMBER 1, 1945, BY REASON OF PHYSICAL DISABILITY, THE ONLY STATUTORY BASIS PERMITTING AN INCREASE IN HIS RETIRED PAY FROM $143.50, THE AMOUNT HE WAS RECEIVING ON SEPTEMBER 30, 1949, TO $160.41 PER MONTH, EFFECTIVE FROM OCTOBER 1, 1949, COMPUTED ON THE YEARS OF SERVICE FACTOR PRESCRIBED IN CLAUSE (1) OF SECTION 402 (D), 63 STAT. 818, WITHOUT BENEFIT OF THE SELIGA RULE, OR PURSUANT TO METHOD (B) IN SECTION 511 OF THE ACT, 63 STAT. 829, WAS AN ELECTION OF OPTION (A) OR (B), RESPECTIVELY, UNDER SECTION 411, 63 STAT. 823. IN THE ABSENCE OF SUCH AN ELECTION HE WAS ENTITLED TO CONTINUE TO RECEIVE RETIRED PAY AS AUTHORIZED UNDER THE LAWS IN EFFECT ON SEPTEMBER 30, 1949. SEE SECTION 3, EXECUTIVE ORDER NO. 10124, APRIL 25, 1950, 15 F.R. 2375.

ON JULY 9, 1951, RUDOLPH FILED HIS ACTION AS PLAINTIFF NO. 87 IN THE CASE OF MAAR, ET AL. V. UNITED STATES, CT.CL. NO. 50223, FOR INCREASED RETAINER AND RETIRED PAY COMPUTED ON THE ONE-HALF BASIS UNDER THE HOLDING IN THE SANDERS CASE, 120 CT.CL. 501 (1951), FOR THE PERIOD FROM THE DATE OF HIS RELEASE TO INACTIVE DUTY IN JULY 1945 "TO DATE OF JUDGMENT.' THAT PART OF THE ACTION FOR INCREASED RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, COMPUTED ON THE ONE-HALF BASIS UNDER THE LAWS IN EFFECT ON SEPTEMBER 30, 1949, MAY NOT BE CONSTRUED AS AN ELECTION OF OPTION (B) IN SECTION 411, I.E., TO RECEIVE RETIRED PAY AS PRESCRIBED IN METHOD (A) OF SECTION 511, SINCE HE WAS ENTITLED TO THE SAME BENEFITS UNDER THE SANDERS RULE AND THE PROVISIONS OF SECTION 3 OF THE EXECUTIVE ORDER OF APRIL 25, 1950. SEE ALSO, SECTION 519 OF THE 1949 ACT.

IN ACCORDANCE WITH THE JUDGMENT ENTERED IN HIS FAVOR ON NOVEMBER 4, 1952, IN THE MAAR CASE (BASED ON A STIPULATION AGREEMENT) RUDOLPH HAS BEEN PAID RETIRED PAY AT THE MONTHLY RATE OF $187.43, COMPUTED ON THE ONE-HALF BASIS AND THE GRADE OF COMMISSIONED WARRANT OFFICER, WITH OVER 21 YEARS OF CREDITABLE SERVICE, $178.50, PLUS $8.93, REFLECTING THE COMPROMISE 5 PERCENT FOR GOOD CONDUCT, FOR THE PERIOD OCTOBER 1, 1949, TO APRIL 30, 1952, INCLUSIVE, AND AT THE RATE OF $194.93 PER MONTH FOR THE MONTHS OF MAY AND JUNE, 1952. HE HAS RECEIVED RETIRED PAY, WITHOUT ANY INCREASE FOR GOOD CONDUCT--- SEE HULSE V. UNITED STATES, 133 CT.CL. 848 (1956/--- AT $185.64 PER MONTH EFFECTIVE JULY 1, 1952; AT $196.78 PER MONTH EFFECTIVE APRIL 1, 1955; AND AT $208.59 PER MONTH COMMENCING JUNE 1, 1958. ALL THE RATES SHOWN ABOVE, EXCEPT AS TO THE PERIOD OCTOBER 1, 1949, TO JUNE 30, 1952 (COVERED BY THE STIPULATION AGREEMENT IN THE JUDGMENT OF NOVEMBER 4, 1952), REPRESENT THE MONTHLY AMOUNTS OF RETIRED PAY DUE RUDOLPH UNDER THE RULE OF THE SANDERS CASE COMPUTED ON THE BASIS OF THE LAWS IN EFFECT ON SEPTEMBER 30, 1949, PLUS ALL PERCENTAGE INCREASES THEREIN AS PROVIDED BY SUBSEQUENT LAWS.

THE BASIC CLAIM ADVANCED IN COURT OF CLAIMS PETITION NO. 410-59, COVERING THE PERIOD COMMENCING SEPTEMBER 1, 1953, AND THE SIMILAR CLAIM PRESENTED TO THIS OFFICE IN YOUR LETTER OF SEPTEMBER 30, 1959 (RECEIVED HERE OCTOBER 2, 1959), WHICH COVERS THE PERIOD FROM OCTOBER 1, 1949, ARE IDENTICAL IN NATURE, NAMELY, FOR INCREASED RETIRED PAY UNDER THE RULE OF THE SELIGA DECISION. IF THE RULE OF THE SELIGA CASE IS APPLIED TO RUDOLPH'S SITUATION AS OF OCTOBER 1, 1949, HE WOULD HAVE BEEN ENTITLED TO RECEIVE RETIRED PAY UNDER CLAUSE (1) OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, AT THE RATE OF $175.69 PER MONTH (COMMISSIONED WARRANT OFFICER, W-2, WITH OVER 26 BUT NOT OVER 30 YEARS' CREDITABLE SERVICE, $334.65 TIMES 52-1/2 PERCENT). THE NAVY DEPARTMENT REPORTS IN LETTER DATED NOVEMBER 2, 1962, THAT FOR PURPOSES OF SECTION 411 RUDOLPH'S DISABILITY HAS BEEN EVALUATED AT 20 PERCENT. THEREFORE HIS RETIRED PAY UNDER CLAUSE (2) OF SECTION 402 (D) WOULD HAVE BEEN ONLY $66.93 PER MONTH ($334.65 TIMES 20 PERCENT).

THUS, IT IS APPARENT THAT THE AMOUNT OF RETIRED PAY DUE RUDOLPH, $175.69, EFFECTIVE FROM OCTOBER 1, 1949, COMPUTED AS PROVIDED IN SECTION 402 (D) OF THE 1949 LAW UNDER THE RULE OF THE SELIGA CASE IS LESS THAN THE AMOUNT OF RETIRED PAY, $178.50, TO WHICH HE WAS ENTITLED ON THE ONE-HALF BASIS COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF LAW IN EFFECT ON SEPTEMBER 30, 1949. THE DEPARTMENT OF THE NAVY REPORTS THAT NO ELECTION OF OPTIONS UNDER SECTION 411 WAS MADE BY RUDLOPH AND IN VIEW OF WHAT IS STATED ABOVE, IT IS UNLIKELY THAT HE WOULD HAVE ELECTED TO RECEIVE LESS RETIRED PAY UNDER OPTION (A) OF SECTION 411. CONSEQUENTLY, NO PROPER BASIS IS PRESENTED TO COMPUTE RUDLOPH'S RETIRED PAY UNDER THE HOLDING OF THE SELIGA DECISION. SEE DECISION OF NOVEMBER 7, 1962, IN THE CASES OF PAUL F. FORSTER, PLAINTIFF NO. 13 IN AFLAGUE, ET AL. V. UNITED STATES, CT.CL. NO. 212-56, AND GEORGE C. ELLIS, PLAINTIFF NO. 2 IN COBB, ET AL. V. UNITED STATES, CT.CL. NO. 430-56.

THE ALTERNATIVE CLAIM FOR INCREASED RETIRED PAY MAY NOT BE ALLOWED, SINCE THE RECORD CLEARLY ESTABLISHES THAT RUDOLPH WAS NOT RETIRED AS A COMMISSIONED WARRANT OFFICER UNDER THE PROVISIONS OF SECTION 8 (A) OF THE ACT OF JULY 24, 1941, BUT INSTEAD WAS RELEASED TO INACTIVE DUTY AS AN ENLISTED MEMBER OF THE FLEET RESERVE (PREVIOUSLY THE FLEET NAVAL RESERVE) IN JULY 1945, PLACED ON THE RETIRED LIST OF THE NAVY IN AN ENLISTED STATUS EFFECTIVE DECEMBER 1, 1945, AND THEN ADVANCED TO THE GRADE OF COMMISSIONED WARRANT OFFICER ON THE RETIRED LIST AS PROVIDED IN 34 U.S.C. 3501I (B) (2), 1946 ED. SEE JONES V. UNITED STATES, 282 F.2D 906 (1960), AND COMPARE THE DECISION IN SEASTROM V. UNITED STATES, 147 CT.CL. 453 (1959).

FURTHERMORE, AS PREVIOUSLY STATED, A JUDGMENT WAS RENDERED ON NOVEMBER 4, 1952, IN FAVOR OF RUDOLPH AS PLAINTIFF NO. 87 IN THE CASE OF MAAR,ET AL. V. UNITED STATES, CT.CL. NO. 50223. ALSO, THE RECORD SHOWS THAT RUDOLPH WAS PLAINTIFF NO. 31 IN THE CASE OF PRENDABLE, ET AL. V. UNITED STATES, CT.CL. NO. 42-56, WHICH LATTER ACTION WAS DISMISSED JULY 12, 1957, ON ITS MERITS BY THE COURT. SEE 139 CT.CL. 748. HENCE, EVEN IF ADDITIONAL RETIRED PAY WERE TO BE FOUND DUE RUDOLPH ON SOME BASIS NOT MENTIONED ABOVE, NO AMOUNT THEREOF COULD BE ALLOWED AS TO ANY PART OF THE PERIOD PRECEDING JULY 13, 1957, BY REASON OF THE DOCTRINE OF RES JUDICATA.

IN THE CIRCUMSTANCES ABOVE SET FORTH RUDOLPH'S BASIC AND ALTERNATIVE CLAIMS ARE DISALLOWED.