B-141750, JUL. 24, 1961

B-141750: Jul 24, 1961

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TO KING AND KING: REFERENCE IS MADE TO YOUR LETTER OF MAY 3. LIEUTENANT WALLS IS PLAINTIFF NO. 6 IN THE CASE OF LEONARD JAMES HOAG. A MOTION TO DISMISS THAT PETITION WITH PREJUDICE (WITH RESPECT TO PLAINTIFF WALLS) IS BEING HELD IN ESCROW BY THE DEPARTMENT OF JUSTICE PENDING SATISFACTORY SETTLEMENT BY THIS OFFICE OF THE CLAIM MENTIONED IN THE FIRST PARAGRAPH ABOVE. THE RECORD SHOWS THAT LIEUTENANT WALLS WAS PLAINTIFF NO. 114 IN THE CASE OF GEORGE MACE. BY THE COURT OF CLAIMS IN THAT CASE APPEARS TO HAVE COVERED THE PERIOD ENDING JUNE 30. LIEUTENANT WALLS WAS ALSO PLAINTIFF NO. 140 IN THE CASE OF LYLE HOLCOMB ARMSTRONG. THE ACTION UNDER COURT OF CLAIMS PETITION NO. 249-56 WAS DISMISSED BY THE COURT ON JULY 12.

B-141750, JUL. 24, 1961

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTER OF MAY 3, 1961, PRESENTING CLAIM ON BEHALF OF LIEUTENANT JAMES FAUL WALLS, U.S. NAVY, RETIRED, FOR INCREASED RETIRED PAY FROM APRIL 1, 1955, IN ACCORDANCE WITH THE HOLDING IN OUR DECISION OF OCTOBER 20, 1960, 40 COMP. GEN. 222.

LIEUTENANT WALLS IS PLAINTIFF NO. 6 IN THE CASE OF LEONARD JAMES HOAG, ET AL. V. UNITED STATES, CT.CL.NO. 544-59, NOW PENDING BEFORE THE COURT OF CLAIMS. A MOTION TO DISMISS THAT PETITION WITH PREJUDICE (WITH RESPECT TO PLAINTIFF WALLS) IS BEING HELD IN ESCROW BY THE DEPARTMENT OF JUSTICE PENDING SATISFACTORY SETTLEMENT BY THIS OFFICE OF THE CLAIM MENTIONED IN THE FIRST PARAGRAPH ABOVE.

THE RECORD SHOWS THAT LIEUTENANT WALLS WAS PLAINTIFF NO. 114 IN THE CASE OF GEORGE MACE, ET AL. V. UNITED STATES, CT.CL.NO. 50374. THE JUDGMENT ENTERED ON FEBRUARY 3, 1953, BY THE COURT OF CLAIMS IN THAT CASE APPEARS TO HAVE COVERED THE PERIOD ENDING JUNE 30, 1952. LIEUTENANT WALLS WAS ALSO PLAINTIFF NO. 140 IN THE CASE OF LYLE HOLCOMB ARMSTRONG, ET AL. V. UNITED STATES, CT.CL.NO. 249-56, CLAIMING 10 PERCENT INCREASE IN RETIRED PAY FOR GOOD CONDUCT FOR THE PERIOD BEGINNING JULY 1, 1952. THE ACTION UNDER COURT OF CLAIMS PETITION NO. 249-56 WAS DISMISSED BY THE COURT ON JULY 12, 1957. SEE 139 CT.CL. 748.

THE DISMISSAL ON JULY 12, 1957, OF LIEUTENANT WALLS' ACTION IN THE ARMSTRONG CASE WAS AN ADJUDICATION ON THE MERITS AS TO HIS RIGHT TO THE INCREASED RETIRED PAY THERE CLAIMED AND RAISES THE BAR OF RES JUDICATA AS TO THE PERIOD UP TO AND INCLUDING THE DATE OF THAT DECISION. CONSEQUENTLY, WHILE THE MOTION TO DISMISS THE ACTION NOW PENDING WITH RESPECT TO LIEUTENANT WALLS UNDER COURT OF CLAIMS PETITION NO. 544-59, INDICATES A WILLINGNESS TO ACCEPT SETTLEMENT FOR THE PERIOD COMMENCING APRIL 1, 1955, IT WOULD NOT APPEAR THAT A SETTLEMENT ON THE BASIS OF THE PERIOD COMMENCING JULY 13, 1957, WOULD AUTHORIZE DISMISSAL OF PETITION NO. 544-59 IN THE ABSENCE OF A STATEMENT FROM YOU AGREEING TO SUCH ACTION. THE ABSENCE OF SUCH STATEMENT, NO FURTHER ACTION WILL BE TAKEN BY THIS OFFICE ON THE CLAIM PENDING HERE.