B-141326, JUN. 24, 1965, 44 COMP. GEN. 821

B-141326: Jun 24, 1965

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WAS BASED ON THE TRIAL COMMISSIONER'S REPORT RATHER THAN ON ITS OWN INDEPENDENT JUDICIAL DETERMINATION OF THE LEGAL MERITS DOES NOT DETRACT FROM THE FORCE AND EFFECT OF THE ACTION AND THE RULE OF ESTOPPEL BY JUDGMENT APPLIES IN THE COMPUTATION OF THE PLAINTIFF'S RETIRED PAY SUBSEQUENT TO SEPTEMBER 30. 1965: REFERENCE IS MADE TO YOUR REQUEST OF FEBRUARY 24. YOUR REQUEST WAS ASSIGNED SUBMISSION NO. THE COURT WAS ADVISED IN OUR REPORT DATED FEBRUARY 26. 080.23 WAS DUE WILSON UNDER THE DECISION OF NOVEMBER 7. THE COURT WAS FURTHER ADVISED THAT UPON REVERTING TO INACTIVE DUTY STATUS ON THE RETIRED LIST EFFECTIVE AUGUST 29. AS THUS COMPUTED HE BECAME ENTITLED TO RECEIVE RETIRED PAY AT THE RATE OF $191.88 PER MONTH WHICH WAS LESS THAN THE AMOUNT OF $204.43 PER MONTH WHICH HE HAD BEEN ENTITLED TO RECEIVE ON JUNE 29.

B-141326, JUN. 24, 1965, 44 COMP. GEN. 821

COURTS - JUDGMENTS, DECREES, ETC. - ESTOPPEL BY JUDGMENT RULE. PAY - SERVICE CREDITS - ENLISTED SERVICE - ADDITIONAL CREDIT BY COURT ORDER THE FACT THAT THE COURT OF CLAIMS ORDER INCREASING THE AMOUNT OF RETIRED PAY AWARDED PLAINTIFF FOR THE PERIOD NOVEMBER 1, 1953 TO SEPTEMBER 30, 1963 IN 159 CT.CL. 80 ON THE BASIS OF 30 YEARS' CREDITABLE SERVICE FOR THE PERIOD COMMENCING AUGUST 29, 1960, WHICH HAD BEEN COMPUTED PURSUANT TO 10 U.S.C. 1402 (A) ON THE RATES OF MONTHLY BASIC PAY IN EFFECT ON MAY 31, 1958, FOR THE ENLISTED PAY GRADE E-7 WITH OVER 22 BUT NOT OVER 26 YEARS OF CREDITABLE CUMULATIVE SERVICE, WAS BASED ON THE TRIAL COMMISSIONER'S REPORT RATHER THAN ON ITS OWN INDEPENDENT JUDICIAL DETERMINATION OF THE LEGAL MERITS DOES NOT DETRACT FROM THE FORCE AND EFFECT OF THE ACTION AND THE RULE OF ESTOPPEL BY JUDGMENT APPLIES IN THE COMPUTATION OF THE PLAINTIFF'S RETIRED PAY SUBSEQUENT TO SEPTEMBER 30, 1963, THE ADOPTION OF THE COMMISSIONER'S REPORT BY THE COURT HAVING BEEN AUTHORIZED BY RULE 66 OF THE COURT OF CLAIMS, REVISED APRIL 1, 1964, THE ACTION OF THE COURT CONSTITUTES A JUDGMENT ON THE MERITS. THE ACCEPTANCE OF A COURT OF CLAIMS JUDGMENT ORDER TO RECOMPUTE THE AMOUNT OF RETIRED PAY AWARDED PLAINTIFF (159 CT.CL. 80) ON THE BASIS OF ADDITIONAL CREDITABLE SERVICE NOT CONSTITUTING A BASIS FOR THE "ADMISSION OF LIABILITY" BY THE DEPARTMENT OF JUSTICE IN ANY OTHER SIMILAR CASE, AND THE ORDER NOT CONTAINING AN EXPLANATION OF WHY THE COURT ORDERED THE RETIRED PAY COMPUTED ON THE BASIS OF 30 YEARS' CREDITABLE SERVICE RATHER THAN 22 BUT NOT OVER 26 YEARS UNDER 10 U.S.C. 1402 (A) FOR THE ENLISTED PAY GRADE E-7, THE JUDGMENT ORDER SHOULD NOT BE USED AS A PRECEDENT IN THE COMPUTATION OF RETIRED PAY IN OTHER SIMILAR CASES.

TO COMMANDER M. L. CONNER, DEPARTMENT OF THE NAVY, JUNE 24, 1965:

REFERENCE IS MADE TO YOUR REQUEST OF FEBRUARY 24, 1965, FOR AN ADVANCE DECISION CONCERNING THE PROPER BASIS OF COMPUTING THE RETIRED PAY OF FRANK BRIGGS WILSON, 164 61 42, BMGC, USN, RETIRED, AS A RESULT OF THE DECISION RENDERED IN HIS FAVOR BY THE COURT OF CLAIMS ON NOVEMBER 7, 1962, UNDER COURT OF CLAIMS PETITION NO. 465-59 (159 CT.CL. 80). YOUR REQUEST WAS ASSIGNED SUBMISSION NO. DO-N-843 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

ON OCTOBER 24, 1963, THE COURT APPROVED PLAINTIFF'S MOTION FOR CALL REQUESTING THIS OFFICE TO COMPUTE THE AMOUNT DUE WILSON UNDER THE DECISION OF NOVEMBER 7, 1962. THE COURT WAS ADVISED IN OUR REPORT DATED FEBRUARY 26, 1964, B-141326, COPY HEREWITH, THAT THE AMOUNT OF $1,080.23 WAS DUE WILSON UNDER THE DECISION OF NOVEMBER 7, 1962, FOR THE PERIOD NOVEMBER 1, 1953, TO SEPTEMBER 30, 1963. THE COURT WAS FURTHER ADVISED THAT UPON REVERTING TO INACTIVE DUTY STATUS ON THE RETIRED LIST EFFECTIVE AUGUST 29, 1960 (WILSON HAD SERVED AN ADDITIONAL BRIEF PERIOD OF ACTIVE DUTY FROM JUNE 30, 1960, TO AUGUST 28, 1960, INCLUSIVE), HIS RETIRED PAY STATUS CAME SQUARELY WITHIN THE PURVIEW OF 10 U.S.C. 1402 (A); THAT SUBJECT TO THE LIMITATIONS AND RESTRICTIONS PRESCRIBED IN SECTION 202 (B) OF THE 1949 LAW, 63 STAT. 808, WILSON BECAME ENTITLED TO RECOMPUTE HIS RETIRED PAY EFFECTIVE FROM AUGUST 29, 1960, UNDER THE PROVISIONS OF 10 U.S.C. 1402 (A) ON THE BASIS OF THE RATES OF MONTHLY BASIC PAY IN EFFECT ON MAY 31, 1958, FOR ENLISTED PAY GRADE E-7 WITH OVER 22 BUT NOT OVER 26 YEARS OF CREDITABLE CUMULATIVE SERVICE, $319.80 MULTIPLIED BY 60 PERCENT; THAT, AS THUS COMPUTED HE BECAME ENTITLED TO RECEIVE RETIRED PAY AT THE RATE OF $191.88 PER MONTH WHICH WAS LESS THAN THE AMOUNT OF $204.43 PER MONTH WHICH HE HAD BEEN ENTITLED TO RECEIVE ON JUNE 29, 1960, AND THAT CONSEQUENTLY THE LATTER RATE HAD BEEN EMPLOYED IN THE COMPUTATION OF HIS RETIRED PAY FOR THE PERIOD FROM AUGUST 29, 1960, TO SEPTEMBER 30, 1963, INCLUSIVE.

AS POINTED OUT IN YOUR LETTER OF FEBRUARY 24, 1965, THE PLAINTIFF AND DEFENDANT WERE IN DISAGREEMENT AS TO THE PROPER METHOD OF COMPUTING WILSON'S RETIRED PAY EFFECTIVE FROM AUGUST 29, 1960. THE MEMORANDUM REPORT UPON ENTRY OF JUDGMENT FILED APRIL 22, 1964, SETS FORTH THE COMMISSIONER'S CONCLUSION THAT PLAINTIFF'S RETIRED PAY SHOULD BE COMPUTED ON THE BASIS OF THE BASIC PAY OF AN ENLISTED PERSON WITH OVER 30 YEARS' CREDITABLE SERVICE AND ON JULY 8, 1964, THE COURT ISSUED THE FOLLOWING ORDER:

"ORDER

"ON NOVEMBER 7, 1962, THE COURT RENDERED AN OPINION HOLDING THAT PLAINTIFF WAS ENTITLED TO RECOVER AND ENTERING JUDGMENT TO THAT EFFECT, RESERVING THE DETERMINATION OF THE AMOUNT OF RECOVERY IN FURTHER PROCEEDINGS.

"ON APRIL 22, 1964, THE TRIAL COMMISSIONER OF THIS COURT FILED A MEMORANDUM REPORT RECOMMENDING THAT JUDGMENT BE ENTERED FOR THE PLAINTIFF IN THE SUM OF $1,409.38 FOR THE PERIOD NOVEMBER 1, 1953, THROUGH SEPTEMBER 30, 1963, WITHOUT PREJUDICE TO PLAINTIFF'S CLAIM FOR INCREASED DISABILITY RETIRED PAY ACCRUING SUBSEQUENT TO SEPTEMBER 30, 1963. ON MAY 8, 1964, DEFENDANT FILED EXCEPTIONS TO THE TRIAL COMMISSIONER'S SAID MEMORANDUM REPORT, REQUESTING AN OPPORTUNITY TO PRESENT ORAL ARGUMENT, AND ON JUNE 2, 1964, PLAINTIFF FILED A BRIEF IN REPLY THERETO. SINCE THE COURT IS IN AGREEMENT WITH THE MEMORANDUM REPORT OF THE TRIAL COMMISSIONER, IT HEREBY ADOPTS WITHOUT ORAL ARGUMENT THE SAME AS THE BASIS FOR ITS JUDGMENT, AND

IT IS ORDERED THAT JUDGMENT BE AND THE SAME IS ENTERED FOR PLAINTIFF IN THE SUM OF ONE THOUSAND, FOUR HUNDRED NINE DOLLARS AND THIRTY-EIGHT CENTS ($1,409.38).'

THE RULE OF RES JUDICATA UNDER THE JUDGMENT OF JULY 8, 1964, CLEARLY COVERS THE PERIOD NOVEMBER 1, 1953, TO SEPTEMBER 30, 1963, INCLUSIVE. YOU EXPRESS DOUBT, HOWEVER, AS TO WHETHER THE RULE OF ESTOPPEL BY JUDGMENT PROPERLY IS APPLICABLE IN THE CIRCUMSTANCES ABOVE SET FORTH AS TO THE PERIOD SUBSEQUENT TO SEPTEMBER 30, 1963, SINCE THE COURT MERELY ADOPTED THE RECOMMENDATIONS OF THE COMMISSIONER AS DISTINGUISHED FROM MAKING ITS OWN INDEPENDENT JUDICIAL DETERMINATION OF THE LEGAL MERITS OF THE ISSUE HERE INVOLVED.

RULE 66 OF THE COURT OF CLAIMS, REVISED APRIL 1, 1964 (FORMERLY RULE 48, 1957 REVISION), PROVIDES AS FOLLOWS:

"IN ALL ACTIONS TRIED ON THE FACTS, THE COURT WILL FIND THE FACTS AND STATE SEPARATELY ITS CONCLUSIONS OF LAW, AND WILL DIRECT THE ENTRY OF AN APPROPRIATE JUDGMENT. THE COURT MAY ADOPT THE COMMISSIONER'S REPORT, INCLUDING CONCLUSIONS OF FACT AND LAW, OR MAY MODIFY IT, OR REJECT IT IN WHOLE OR IN PART, OR DIRECT THE COMMISSIONER TO RECEIVE FURTHER EVIDENCE, OR REFER THE CASE BACK TO HIM WITH INSTRUCTIONS. DUE REGARD SHALL BE GIVEN TO THE CIRCUMSTANCE THAT THE TRIAL COMMISSIONER HAD THE OPPORTUNITY TO EVALUATE THE CREDIBILITY OF THE WITNESSES; AND THE FINDINGS OF FACT MADE BY THE COMMISSIONER SHALL BE PRESUMED TO BE CORRECT.'

THE FACT THAT THE REPORT PREPARED BY THE COMMISSIONER IN WILSON'S CASE WAS ADOPTED BY THE COURT (AS EXPRESSLY AUTHORIZED BY RULE 66 ( DOES NOT DETRACT FROM THE LEGAL FORCE AND EFFECT OF THE ACTION THUS TAKEN. WHEN THE COURT APPROVED THE REPORT AND ORDER RECOMMENDED BY THE COMMISSIONER AND ENTERED JUDGMENT IN ACCORDANCE THEREWITH, SUCH ACTION CONSTITUTED A JUDGMENT BY THE COURT ON THE MERITS. IN SUCH CIRCUMSTANCES THE RULE OF ESTOPPEL BY JUDGMENT GOVERNS THE COMPUTATION OF WILSON'S RETIRED PAY FOR THE PERIOD COMMENCING OCTOBER 1, 1963. SEE 36 COMP. GEN. 489 AND 36 COMP. GEN. 501. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

YOU FURTHER INQUIRE WHETHER, IF IT IS HELD THAT THE PROCEEDINGS ABOVE REFERRED TO "CONSTITUTE A JUDICIAL DETERMINATION OF THE LEGAL MERITS OF WILSON'S CASE," SUCH HOLDING MAY BE FOLLOWED "IN SIMILAR CASES.' WHILE WE ARE NOT POSITIVE AS TO THE PRECISE POINT INTENDED TO BE COVERED IN YOUR SECOND QUESTION, IT WILL BE ASSUMED THAT YOUR REQUEST IS DIRECTED TO THE BASIS EMPLOYED IN COMPUTING WILSON'S RETIRED PAY FOR THE PERIOD AUGUST 29, 1960, TO SEPTEMBER 30, 1963, INCLUSIVE, UNDER THE JUDGMENT ORDER OF JULY 8, 1964, THAT IS, WHETHER THAT METHOD OF COMPUTING RETIRED PAY MAY BE EMPLOYED BY THE DEPARTMENT OF THE NAVY IN OTHER SIMILAR CASES.

OUR VIEWS IN THE MATTER ARE SET FORTH IN DETAIL ON PAGES 3 AND 4 OF OUR REPORT OF FEBRUARY 26, 1964, TO THE CHIEF CLERK OF THE COURT OF CLAIMS. SINCE IT IS UNDERSTOOD THAT THE DEPARTMENT OF JUSTICE IS IN FULL AGREEMENT WITH THE POSITION TAKEN BY THIS OFFICE, THE JUDGMENT ORDER OF JULY 8, 1964, WILL NOT BE USED AS A BASIS FOR AN "ADMISSION OF LIABILITY" BY THE DEPARTMENT OF JUSTICE IN ANY OTHER SIMILAR CASE. IN THE CIRCUMSTANCES AND SINCE THE JUDGMENT ORDER OF JULY 8, 1964, CONTAINS NO EXPLANATION OF THE REASONS WHY THE COURT BELIEVES THAT THE PROVISIONS OF LAW CITED IN OUR LETTER OF FEBRUARY 26, 1964, ARE NOT APPLICABLE IN THIS CASE, SUCH JUDGMENT ORDER SHOULD NOT BE USED AS A PRECEDENT IN THE COMPUTATION OF RETIRED PAY IN OTHER SIMILAR CASES. ACCORDINGLY, YOUR SECOND INQUIRY IS ANSWERED IN THE NEGATIVE.

THE RETIRED PAY DEPARTMENT HAS FORWARDED (SEE LETTER DATED FEBRUARY 16, 1965, XPA:9:42, ADDRESSED TO THE CLAIMS DIVISION OF THIS OFFICE) WILSON'S CLAIM EXECUTED ON DD FORM 827 FOR INCREASED RETIRED PAY COVERING THE PERIOD OCTOBER 1, 1963, TO DECEMBER 31, 1964, INCLUSIVE. INSTRUCTIONS ARE BEING ISSUED THIS DATE TO OUR CLAIMS DIVISION TO ALLOW THE CLAIM, IF OTHERWISE CORRECT, FOR INCREASED RETIRED PAY COMPUTED ON THE SAME BASIS (UNDER THE PRINCIPLE OF "ESTOPPEL BY JUDGMENT") AS THE METHOD EMPLOYED BY THE COURT IN THE JUDGMENT OF JULY 8, 1964.