B-95846, FEB. 5, 1958

B-95846: Feb 5, 1958

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ATTORNEY AT LAW: THERE IS PRESENTED IN YOUR LETTER OF DECEMBER 6. DOWNS WAS TRANSFERRED TO THE FLEET NAVAL RESERVE IN 1930. THAT HE WAS PLACED ON THE RETIRED LIST OF THE NAVY ON SEPTEMBER 1. THAT HE WAS APPOINTED ON NOVEMBER 15. THAT HE WAS RELEASED FROM ACTIVE DUTY OCTOBER 23. DOWNS WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF CHIEF PHARMACIST (W-2) PURSUANT TO THE PROVISIONS OF SECTION 10 OF THE 1941 ACT. THE DEPARTMENT OF THE NAVY FURTHER REPORTS THAT HIS RETIRED STATUS WAS CHANGED TO THAT OF "PHYSICAL DISABILITY" EFFECTIVE AS OF MARCH 26. ENTITLING HIM TO RECEIVE RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING AS A CHIEF WARRANT OFFICER.

B-95846, FEB. 5, 1958

TO MR. FRED W. SHIELDS, ATTORNEY AT LAW:

THERE IS PRESENTED IN YOUR LETTER OF DECEMBER 6, 1957, YOUR REQUEST AS ATTORNEY FOR EDWARD S. DOWNS, CHIEF PHARMACIST, U.S. NAVY, RETIRED, THAT WE RECONSIDER AND REVIEW THE ACTION TAKEN IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED NOVEMBER 29, 1957, DISALLOWING HIS CLAIM FOR AN ADDITIONAL AMOUNT OF RETIRED PAY FOR THE PERIOD FROM OCTOBER 23 (24), 1945, TO MARCH 26 (25), 1948, INCLUSIVE.

IT APPEARS THAT MR. DOWNS WAS TRANSFERRED TO THE FLEET NAVAL RESERVE IN 1930; THAT HE WAS PLACED ON THE RETIRED LIST OF THE NAVY ON SEPTEMBER 1, 1942, WHILE SERVING ON ACTIVE DUTY; THAT HE WAS APPOINTED ON NOVEMBER 15, 1942, A CHIEF WARRANT OFFICER FOR TEMPORARY SERVICE UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AND THAT HE WAS RELEASED FROM ACTIVE DUTY OCTOBER 23, 1945. THE DEPARTMENT OF THE NAVY HAS REPORTED THAT MR. DOWNS WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF CHIEF PHARMACIST (W-2) PURSUANT TO THE PROVISIONS OF SECTION 10 OF THE 1941 ACT, AS AMENDED BY THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, THEREBY ENTITLING HIM TO RECEIVE RETIRED PAY BASED ON THAT RANK EFFECTIVE FROM OCTOBER 24, 1945, THE DAY FOLLOWING THE DATE OF HIS RELEASE FROM ACTIVE DUTY. THE DEPARTMENT OF THE NAVY FURTHER REPORTS THAT HIS RETIRED STATUS WAS CHANGED TO THAT OF "PHYSICAL DISABILITY" EFFECTIVE AS OF MARCH 26, 1948, UNDER AUTHORITY OF SECTION 8 (B) OF THE 1941 ACT, 55 STAT. 604, 34 U.S.C. 350G (B), 1946 ED., ENTITLING HIM TO RECEIVE RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING AS A CHIEF WARRANT OFFICER.

THE RECORD DISCLOSES THAT MR. DOWNS WAS ONE OF THE PLAINTIFFS ON COURT OF CLAIMS PETITION NO. 49667 (HERMOGENES ABAD ET AL. V. UNITED STATES), AND THAT THE COURT OF CLAIMS ENTERED AN ORDER OF JUDGMENT ON OCTOBER 6, 1953, IN HIS FAVOR IN THE AMOUNT OF $1,216.63. THE ORDER OF JUDGMENT WAS BASED ON A STIPULATION AGREEMENT DATED SEPTEMBER 9, 1953, REACHED UNDER AUTHORITY OF THE SANDERS DECISION, 120 C.CLS. 501, AND THE AMOUNT OF THE JUDGMENT, $1,216.63, REPRESENTED ADDITIONAL RETIRED PAY AS THE DIFFERENCE BETWEEN ONE-HALF AND ONE-THIRD BASE PAY FORMULA FOR THE PERIOD FROM OCTOBER 24, 1945, TO MARCH 25, 1948, INCLUSIVE, PLUS A FIVE PERCENTUM INCREASE FOR GOOD CONDUCT.

MR. DOWNS' PRESENT CLAIM FOR AN ADDITIONAL AMOUNT OF RETIRED PAY FOR THE PERIOD FROM OCTOBER 24, 1945, TO MARCH 25, 1948, INCLUSIVE, WAS PRESENTED IN YOUR LETTER OF AUGUST 6, 1957, AND RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON AUGUST 7, 1957. UNDER THE PROVISIONS OF 31 U.S.C. 71A, 1952 ED., EVERY CLAIM OR DEMAND (WITH AN EXCEPTION NOT HERE PERTINENT) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE IS FOREVER BARRED UNLESS SUCH CLAIM IS RECEIVED IN THE GENERAL ACCOUNTING OFFICE "WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.' HENCE, THIS OFFICE IS PRECLUDED FROM CONSIDERING ANY PART OF THE CLAIM WHICH ACCRUED DURING THE PERIOD PRECEDING AUGUST 7, 1947.

THIS OFFICE LIKEWISE IS PRECLUDED FROM TAKING ANY ACTION WITH RESPECT TO THE REMAINING PERIOD OF THE CLAIM, I.E., AUGUST 7, 1947, TO MARCH 25, 1948, INCLUSIVE, BY REASON OF THE PROVISIONS OF 28 U.S.C. 2517, WHICH ARE AS FOLLOWS:

"/A) EVERY FINAL JUDGMENT RENDERED BY THE COURT OF CLAIMS AGAINST THE UNITED STATES SHALL BE PAID OUT OF ANY GENERAL APPROPRIATION THEREFOR, ON PRESENTATION TO THE GENERAL ACCOUNTING OFFICE OF A CERTIFICATION OF THE JUDGMENT BY THE CLERK AND CHIEF JUDGE OF THE COURT.

"/B) PAYMENT OF ANY SUCH JUDGMENT AND OF INTEREST THEREON SHALL BE A FULL DISCHARGE TO THE UNITED STATES OF ALL CLAIMS AND DEMANDS ARISING OUT OF THE MATTERS INVOLVED IN THE CASE OR CONTROVERSY.'

THE ORDER OF JUDGMENT ENTERED BY THE COURT OF CLAIMS ON OCTOBER 6, 1953, IN FAVOR OF MR. DOWNS CONSTITUTES A FINAL JUDGMENT AGAINST THE UNITED STATES WITHIN THE PURVIEW OF SUBSECTION (A) AND THE PAYMENT OF THAT JUDGMENT ON THE CERTIFICATION OF THE GENERAL ACCOUNTING OFFICE DATED MARCH 30, 1954, IS REQUIRED, UNDER THE PROVISIONS OF SUBSECTION (B), ABOVE QUOTED, TO BE CONSIDERED AS ,A FULL DISCHARGE TO THE UNITED STATES OF ALL CLAIMS AND DEMANDS ARISING OUT OF THE MATTERS INVOLVED IN THE CASE OR CONTROVERSY.' THEREFORE, SINCE THAT PART OF THE PRESENT CLAIM FOR AN ADDITIONAL AMOUNT OF RETIRED PAY COVERING THE PERIOD FROM AUGUST 7, 1947, TO MARCH 25, 1948, INCLUSIVE, WAS INCLUDED IN THE PERIOD COVERED BY THE ORDER OF JUDGMENT DATED OCTOBER 6, 1953, AND SINCE THE JUDGMENT HAS BEEN PAID, THE PROVISIONS OF 28 U.S.C. 2517 OPERATE AS A BAR TO THE CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF THE PRESENT CLAIM FOR AN AMOUNT IN ADDITION TO THAT ALLOWED BY THE ORDER OF JUDGMENT. SEE 30 COMP. GEN. 178.

THERE HAS NOT BEEN OVERLOOKED, IN THIS CONNECTION, THE SPECIFIC REFERENCE MADE IN YOUR LETTER OF DECEMBER 6, 1957, TO THE DECISION RENDERED ON JULY 12, 1957, BY THE COURT OF CLAIMS IN THE CASES OF EARL LEWIS ABARR ET AL. V. UNITED STATES. IN THOSE CASES THE COURT OF CLAIMS HELD THAT THE COURT'S EARLIER JUDGMENT IN A PRIOR SUIT BASED ON A STIPULATION AGREEMENT AND COVERING PERIODS PRIOR TO THAT COVERED IN THE CASES THEN BEFORE THE COURT WAS NOT A DETERMINATION BY THE COURT OF THE LEGAL MERITS OF THE CASES AND, HENCE, THAT THE RULE OF RES JUDICATA OR ESTOPPEL BY JUDGMENT WAS NOT FOR APPLICATION. HOWEVER, THE CIRCUMSTANCES SURROUNDING THAT PART OF MR. DOWNS' CLAIM FOR AN ADDITIONAL AMOUNT OF RETIRED PAY COVERING THE PERIOD FROM AUGUST 7, 1947, TO MARCH 25, 1948, INCLUSIVE, ARE ENTIRELY DIFFERENT IN THAT THE PERIOD COVERED BY MR. DOWNS' CLAIM ACTUALLY WAS INCLUDED IN THE STIPULATION JUDGMENT ENTERED IN HIS FAVOR BY THE COURT ON OCTOBER 6, 1953. ACCORDINGLY, IN VIEW OF THE PROVISIONS OF 28 U.S.C. 2517, ABOVE QUOTED, THIS OFFICE IS WITHOUT AUTHORITY TO TAKE ANY ACTION IN THE MATTER AND THE DISALLOWANCE OF THE CLAIM IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED NOVEMBER 29, 1957, IS SUSTAINED.