B-92897, JAN. 26, 1966

B-92897: Jan 26, 1966

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DEPARTMENT OF THE ARMY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 15. OTHER PERTINENT PAPERS WERE RECEIVED AS ENCLOSURES TO YOUR LETTER WHICH WAS FORWARDED HERE ON DECEMBER 17. THAT THE PLAINTIFF WAS PERMANENTLY INCAPACITATED BY A SERVICE-CONNECTED DISABILITY. THE HOLDING BY THE COURT THAT "THE FIRST ORDER OF THE SECRETARY OF WAR WAS FINAL" AND NOT SUBJECT TO RECISION ON THE BASIS OF THE SUBSEQUENT ARMY RETIRING BOARD PROCEEDINGS ON OCTOBER 11. WAS A FINAL DECISION IN THE MATTER AND ALL THE POINTS PLACED IN ISSUE THEREIN. INCLUDING THE FACTS WHICH WERE LITIGATED IN THE CASE. HAVE BECOME RES JUDICATA. NECESSARILY INVOLVES THE IDENTICAL ISSUES OF FACT AND LAW WHICH WERE CONSIDERED AND DECIDED BY THE COURT IN THE DECISION OF OCTOBER 2.

B-92897, JAN. 26, 1966

TO LIEUTENANT COLONEL H. W. KASSERMAN, FC, FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 15, 1965, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF RETIRED PAY FOR THE PERIOD NOVEMBER 1, 1964, TO SEPTEMBER 30, 1965, IN THE CASE OF MAJOR KEITH CARLIN, 0-447020, AUS, NOW DECEASED. A VOUCHER STATED IN FAVOR OF DECEDENT'S WIDOW, MRS. MARY J. CARLIN, AND OTHER PERTINENT PAPERS WERE RECEIVED AS ENCLOSURES TO YOUR LETTER WHICH WAS FORWARDED HERE ON DECEMBER 17, 1965, BY THE OFFICE, CHIEF OF FINANCE, UNDER D.O. NO. A-883, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU REQUEST DECISION WHETHER THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF CARLIN V. UNITED STATES, 121 CT.CL. 643, OCTOBER 2, 1951, CONCERNING THE FINALITY OF THE CERTIFICATION BY THE SECRETARY OF WAR ON JULY 28, 1945, THAT THE PLAINTIFF WAS PERMANENTLY INCAPACITATED BY A SERVICE-CONNECTED DISABILITY, CONSTITUTES A LEGAL BASIS FOR PAYMENT OF RETIREMENT PAY SUBSEQUENT TO FEBRUARY 5, 1952, THE DATE OF THE MONEY JUDGMENT ENTERED IN FAVOR OF MAJOR CARLIN OR WHETHER THE CERTIFICATION BY THE SECRETARY OF THE ARMY ON OCTOBER 1, 1952, AS THE RESULT OF THE COURT OF CLAIMS DECISION, CONSTITUTES A LEGAL BASIS FOR SUCH PAYMENT.

THE HOLDING BY THE COURT THAT "THE FIRST ORDER OF THE SECRETARY OF WAR WAS FINAL" AND NOT SUBJECT TO RECISION ON THE BASIS OF THE SUBSEQUENT ARMY RETIRING BOARD PROCEEDINGS ON OCTOBER 11, 1945, CONSTITUTED A JUDICIAL DETERMINATION THAT MAJOR CARLIN HAD BEEN LEGALLY CERTIFIED BY THE SECRETARY OF WAR AS ELIGIBLE TO RECEIVE DISABILITY RETIREMENT PAY EFFECTIVE FROM JULY 28, 1945. THE DECISION OF OCTOBER 2, 1951, IN FAVOR OF MAJOR CARLIN, WAS A FINAL DECISION IN THE MATTER AND ALL THE POINTS PLACED IN ISSUE THEREIN, INCLUDING THE FACTS WHICH WERE LITIGATED IN THE CASE, HAVE BECOME RES JUDICATA. THE QUESTION OF MAJOR CARLIN'S RIGHT TO RECEIVE DISABILITY RETIREMENT PAY AFTER FEBRUARY 5, 1952, NECESSARILY INVOLVES THE IDENTICAL ISSUES OF FACT AND LAW WHICH WERE CONSIDERED AND DECIDED BY THE COURT IN THE DECISION OF OCTOBER 2, 1951, IN HIS CASE. THAT SITUATION THE RULE OF ESTOPPEL BY JUDGMENT (COLLATERAL ESTOPPEL) HAD THE EFFECT OF PRECLUDING THE DEFENDANT (GOVERNMENT) AND THE PLAINTIFF (MAJOR CARLIN) FROM ANY FURTHER LITIGATION AGAINST EACH OTHER OF THE ISSUES WHICH WERE ACTUALLY LITIGATED AND DETERMINED BY THE COURT IN THE DECISION OF OCTOBER 2, 1951. SEE 36 COMP. GEN. 489 WHEREIN IT WAS STATED AT PAGE 492:

"WHILE THE RULE OF ESTOPPEL BY JUDGMENT IS PRIMARILY A RULE DESIGNED TO APPLY TO PROCEEDINGS IN COURT, THERE IS GRAVE DOUBT, IN VIEW OF THE SUPREME COURT'S CLEAR AND CONTINUING SANCTION OF THAT RULE, THAT WE (GENERAL ACCOUNTING OFFICE) WOULD BE JUSTIFIED, IN THE EXERCISE OF OUR DUTIES AND RESPONSIBILITIES AS PRESCRIBED BY LAW, TO IGNORE SUCH RULE OR TO TAKE ACTION WHICH, IN EFFECT, WOULD BE INCONSISTENT WITH THE RULE.'

ALSO, SEE 36 COMP. GEN. 501.

THIS OFFICE HELD IN THE CASE OF COLONEL CLARENCE A. REMALEY, B 118800, JANUARY 11, 1966, THAT THE COURT OF CLAIMS DECISION OF APRIL 3, 1956, RENDERED IN HIS FAVOR, ESTABLISHED THAT THE SECRETARY OF THE ARMY HAD MADE A DETERMINATION ON OCTOBER 30, 1952, WHILE COLONEL REMALEY WAS ENTITLED TO RECEIVE BASIC PAY, THAT HE, COLONEL REMALEY, WAS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE BY REASON OF PHYSICAL DISABILITY RATED AT 30 PERCENT INCURRED IN THE PERFORMANCE OF DUTY; THAT SUCH DETERMINATION HAD PLACED COLONEL REMALEY SQUARELY WITHIN THE PURVIEW OF THE APPLICABLE PROVISIONS OF LAW AND THEREFORE "HE MUST BE CONSIDERED AS HAVING BEEN LEGALLY ENTITLED TO BE RETIRED FOR PHYSICAL DISABILITY WITH ENTITLEMENT TO RECEIVE DISABILITY RETIREMENT PAY EFFECTIVE FROM NOVEMBER 1, 1952.' IT WAS EXPRESSLY POINTED OUT THAT "IN SUCH CIRCUMSTANCES CORRECTIVE ACTION BY THE ARMY BOARD FOR THE CORRECTION OF MILITARY RECORDS * * * WAS NOT NECESSARY AND THE ABSENCE OF SUCH A CORRECTION OF RECORDS HAS NOT AFFECTED COLONEL REMALEY'S RIGHT TO RECEIVE DISABILITY RETIRED PAY FROM APRIL 1, 1956, TO DATE.' ALSO SEE THE LAST PARAGRAPH (PAGE 6) IN THE DECISION OF JANUARY 11, 1966, IN THE REMALEY CASE, WHERE SPECIFIC REFERENCE WAS MADE TO THE FRITH CASE (B-139264, SEPTEMBER 10, 1963, 43 COMP. GEN. 242) ON THE BASIS OF WHICH THE PAYMENT OF DISABILITY RETIREMENT PAY TO MAJOR CARLIN AND COLONEL REMALEY WAS DISCONTINUED AFTER OCTOBER 31, 1964.

SINCE IT HAS BEEN JUDICIALLY ESTABLISHED THAT MAJOR CARLIN WAS LEGALLY CERTIFIED BY THE SECRETARY OF WAR AS ELIGIBLE TO RECEIVE DISABILITY RETIREMENT PAY EFFECTIVE FROM JULY 28, 1945, ACTION IN THE MATTER BY THE ARMY BOARD FOR THE CORRECTION OF MILITARY RECORDS (10 U.S.C. 1552) WAS NOT NECESSARY AND THE ABSENCE OF SUCH A CORRECTION OF RECORDS DID NOT AFFECT THE RIGHT OF MAJOR CARLIN TO RECEIVE DISABILITY RETIREMENT PAY FROM FEBRUARY 6, 1952, TO OCTOBER 14, 1965, INCLUSIVE, THE DATE OF HIS DEATH AS SHOWN IN ENCLOSURE 14 RECEIVED WITH YOUR LETTER. YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.

PAYMENT ON THE VOUCHER, RETURNED HEREWITH, IS AUTHORIZED IF OTHERWISE CORRECT. ALSO, MAJOR CARLIN WAS ENTITLED TO RECEIVE OTHERWISE PROPER DISABILITY RETIREMENT PAY DURING THE PERIOD FEBRUARY 6, 1952, TO OCTOBER 31, 1964, INCLUSIVE.