B-95090, SEP. 11, 1961

B-95090: Sep 11, 1961

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KING AND KING: REFERENCE IS MADE TO YOUR LETTER OF MARCH 24. THE CLAIM WAS DISALLOWED UNDER THE DOCTRINE OF RES JUDICATA AND ALSO ON THE BASIS THAT SECTION 3 OF THE ACT OF JUNE 19. THE RECORD SHOWS THAT MACLATCHY WAS RECALLED TO ACTIVE DUTY IN 1939. WHILE SERVING ON ACTIVE DUTY HE WAS APPOINTED A WARRANT OFFICER (TEMPORARY APPOINTMENT) IN 1942 AND IN 1944 A LIEUTENANT (JG). HE WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF LIEUTENANT (JG). ON APPROVAL OF HIS APPLICATION HE WAS RESTORED TO HIS ENLISTED STATUS ON THE RETIRED LIST EFFECTIVE NOVEMBER 3. RESTORATION TO HIS RETIRED ENLISTED STATUS WAS ACCOMPLISHED IN ACCORDANCE WITH THE PROVISIONS OF THE LAST PROVISO OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949.

B-95090, SEP. 11, 1961

TO MR. THOMAS M. GITTINGS, JR., KING AND KING:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 24, 1961, REQUESTING REVIEW OF THE ACTION TAKEN IN SETTLEMENT DATED APRIL 6, 1960, DENYING THE CLAIM OF GORDON F. MACLATCHY, U.S. NAVY, RETIRED, FOR INCREASED RETIRED PAY COMPUTED ON THE GRADE OF WARRANT OFFICER FROM NOVEMBER 1, 1952. THE CLAIM WAS DISALLOWED UNDER THE DOCTRINE OF RES JUDICATA AND ALSO ON THE BASIS THAT SECTION 3 OF THE ACT OF JUNE 19, 1948, 62 STAT. 505, REQUIRED REVERSION IN MACLATCHY'S CASE TO AN ENLISTED STATUS ON THE RETIRED LIST.

THE RECORD SHOWS THAT MACLATCHY WAS RECALLED TO ACTIVE DUTY IN 1939, AS A MEMBER OF THE FLEET RESERVE AND THAT HE REVERTED TO AN INACTIVE STATUS IN JULY 1945. WHILE SERVING ON ACTIVE DUTY HE WAS APPOINTED A WARRANT OFFICER (TEMPORARY APPOINTMENT) IN 1942 AND IN 1944 A LIEUTENANT (JG), ALSO A TEMPORARY APPOINTMENT. WHEN TRANSFERRED TO THE RETIRED LIST ON NOVEMBER 1, 1952 (COMPLETION OF 30 YEARS' SERVICE), HE WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF LIEUTENANT (JG), THE HIGHEST TEMPORARY GRADE IN WHICH HE HAD SERVED SATISFACTORILY AS DETERMINED BY THE SECRETARY OF THE NAVY. THE RECORD INDICATES THAT UPON ADVANCEMENT TO THE GRADE OF LIEUTENANT (JG) ON THE RETIRED LIST HIS RETIRED PAY STATUS CAME WITHIN THE RESTRICTIONS IMPOSED BY SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, AND ON APPROVAL OF HIS APPLICATION HE WAS RESTORED TO HIS ENLISTED STATUS ON THE RETIRED LIST EFFECTIVE NOVEMBER 3, 1952. RESTORATION TO HIS RETIRED ENLISTED STATUS WAS ACCOMPLISHED IN ACCORDANCE WITH THE PROVISIONS OF THE LAST PROVISO OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949.

MACLATCHY IS NOT ENTITLED TO ANY RETIRED PAY FOR NOVEMBER 1 AND 2, 1952, DUE TO HIS "OFFICER" STATUS AND THE RESTRICTIONS OF SECTION 212. SINCE NOVEMBER 3, 1952, THE DATE HE WAS RESTORED TO A RETIRED ENLISTED STATUS, HIS RETIRED PAY HAS BEEN COMPUTED ON THAT BASIS. YOUR REQUEST FOR RECONSIDERATION OF MACLATCHY'S CLAIM FOR INCREASED RETIRED PAY COMPUTED ON THE GRADE OF TEMPORARY WARRANT OFFICER EFFECTIVE FROM NOVEMBER 3, 1952, REFERS TO THE DECISION RENDERED ON JUNE 8, 1960, BY THE COURT OF CLAIMS IN THE CLARK CASE, CT.CL.NO. 45-55. ON THE BASIS OF THE RULING IN THAT CASE AND IF OTHERWISE CORRECT, SETTLEMENT WILL BE ISSUED IN MACLATCHY'S FAVOR FOR INCREASED RETIRED PAY COMPUTED ON THE TEMPORARY GRADE OF WARRANT OFFICER (SATISFACTORY SERVICE IN THAT GRADE WILL BE PRESUMED AS A RESULT OF HIS SATISFACTORY SERVICE IN THE GRADE OF LIEUTENANT (JG) ( SUBJECT TO THE BAR OF RES JUDICATA AS EXPLAINED BELOW.

MACLATCHY WAS PLAINTIFF NO. 108 IN THE CASE OF JACOB, ET AL. V. UNITED STATES, CT.CL.NO. 49619, AND A JUDGMENT WAS ENTERED IN HIS FAVOR IN THAT CASE ON FEBRUARY 3, 1953, BASED ON A STIPULATION AGREEMENT. THE PERTINENT LANGUAGE OF THAT JUDGMENT, AND PARAGRAPH 8 OF THE STIPULATION AGREEMENT ON WHICH SUCH JUDGMENT IS BASED, IS IDENTICAL TO THE JUDGMENT OF APRIL 7, 1953, AND THE STIPULATION AGREEMENT IN THE CASE OF HERBERT, PLAINTIFF NO. 26, IN AGUINALDO, ET AL. V. UNITED STATES, CT.CL. 49726. THE PROPER APPLICATION OF THE DOCTRINE OF RES JUDICATA RAISED BY THE LETTER JUDGMENT OF APRIL 7, 1953, WAS DIRECTLY BEFORE THE COURT IN ARMSTRONG, ET AL. (HERBERT, PLAINTIFF NO. 6) V. UNITED STATES, CT.CL.NO. 431-56, DECIDED JULY 19, 1961. IN THAT CASE THE COURT STATED THAT THE ENTRY OF THE JUDGMENT OF APRIL 7, 1953,"FOR THE ENTIRE PERIOD FOR WHICH PLAINTIFF SUED (NOVEMBER 7, 1946, TO "DATE OF JUDGMENT") * * * WAS ERRONEOUS, BECAUSE IT WAS NOT IN ACCORD WITH THE STIPULATION OF THE PARTIES AGREEING UPON THE JUDGMENT TO BE ENTERED," ADDING THAT "THE COURT HAD NO BASIS FOR THE ENTRY OF JUDGMENT OTHER THAN THE STIPULATION OF THE PARTIES.' THE COURT THUS VIEWED THE STIPULATION IN THAT CASE AS COVERING THE PERIOD NOVEMBER 7, 1946, TO SEPTEMBER 30, 1949, ONLY, AND HENCE THAT IT HAD BEEN IMPROPER TO ENTER JUDGMENT FOR THE ENTIRE PERIOD FOR WHICH HERBERT, AS PLAINTIFF NO. 26, HAD SUED UNDER PETITION NO. 49726. THE COURT THEN DECLARED "THAT JUDGMENT, THEREFORE, WILL BE AMENDED TO ACCORD WITH THE STIPULATION.' THE COURT'S OPINION AND ITS ACTION IN THE CASE INDICATES QUITE CLEARLY ITS VIEW THAT UNLESS THE JUDGMENT OF APRIL 7, 1953, WAS SO AMENDED IT WOULD BE RES JUDICATA TO THE DATE THEREOF.

THE SIMILARITY BETWEEN THE HERBERT AND MACLATCHY CASES IS READILY APPARENT--- IN BOTH CASES THE COMPUTATION OF RETIRED PAY CONTAINED IN THE STIPULATION AGREEMENT COVERS ONLY A PERIOD UP TO AND INCLUDING SEPTEMBER 30, 1949, AND, AS ABOVE STATED, THE TERMS OF THE RESPECTIVE STIPULATION AGREEMENTS AND THE RESPECTIVE JUDGMENTS WERE THE SAME. IN SUCH CIRCUMSTANCES, AND IN THE ABSENCE OF AN AMENDMENT BY THE COURT OF THE JUDGMENT OF FEBRUARY 3, 1953, EFFECTIVELY RESTRICTING THE BAR OF RES JUDICATA TO THE PERIOD PRIOR TO OCTOBER 1, 1949, NO PART OF MACLATCHY'S CLAIM MAY BE ALLOWED WITH RESPECT TO THE PERIOD PRECEDING FEBRUARY 4, 1953.