B-120159, AUG. 11, 1965

B-120159, AUG. 11, 1965

TO KING AND KING:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 19, 1965, REQUESTING RECONSIDERATION OF THE CONCLUSION REACHED IN OUR DECISION TO YOU OF NOVEMBER 7, 1962, B-120159, ON THE CLAIM OF FRANK MARSHALL MONDEAU, FOR INCREASED RETIRED PAY FOR THE PERIOD AUGUST 4, 1955, THROUGH OCTOBER 9, 1959.

IN CLAIMS DIVISION SETTLEMENT DATED DECEMBER 7, 1961, MR. MONDEAU WAS ALLOWED AN ADDITIONAL AMOUNT OF RETIRED PAY FOR THE PERIOD OCTOBER 10, 1959, THROUGH SEPTEMBER 30, 1961, COMPUTED ON THE BASIS OF THE RATES OF BASIC PAY ESTABLISHED, EFFECTIVE APRIL 1, 1955, BY THE CAREER INCENTIVE ACT OF 1955, CH. 20, 69 STAT. 18-23. HIS CLAIM COVERING THE PERIOD AUGUST 4, 1955, THROUGH OCTOBER 9, 1959, WAS DISALLOWED IN THAT SETTLEMENT UNDER THE DOCTRINE OF RES JUDICATA BY REASON OF THE JUDGMENT ENTERED ON OCTOBER 9, 1959, IN MONDEAU'S FAVOR IN THE AMOUNT OF $15,141.20, AS PLAINTIFF NO. 19 IN THE CASE OF AMSDEN, ET AL. V. UNITED STATES, DECIDED JULY 15, 1959, 146 CT.CL. 809. THE AMOUNT OF THAT JUDGMENT REPRESENTED RETIRED PAY WITHHELD UNDER SECTION 212 OF THE ECONOMY ACT OF 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, 1952 ED., DURING THE PERIOD MARCH 1, 1948, TO AUGUST 3, 1955, INCLUSIVE.

THE REASONS UNDERLYING OUR CONCLUSION TO SUSTAIN THE RES JUDICATA DENIAL OF MR. MONDEAU'S CLAIM COVERING THE PERIOD AUGUST 4, 1955, TO OCTOBER 9, 1959, INCLUSIVE, WERE FULLY STATED IN OUR DECISION OF NOVEMBER 7, 1962, TOGETHER WITH ALL THE PERTINENT FACTS AND THEREFORE THOSE DETAILS WILL NOT BE REPEATED HERE. IN YOUR LETTER OF APRIL 19, 1965, YOU RAISE THE ISSUE WHETHER THE RULE OF RES JUDICATA PROPERLY IS APPLICABLE TO THE PRESENT CLAIM FOR INCREASED RETIRED PAY EFFECTIVE AUGUST 4, 1955, COMPUTED AT THE RATES OF BASIC PAY ESTABLISHED IN THE CAREER INCENTIVE ACT OF 1955, UNDER THE FAGAN (GOVER) RULE, 149 CT.CL. 715, SINCE THE 1955 ACT WAS NOT ENACTED UNTIL MARCH 31, 1955, ONE YEAR AFTER MONDEAU, AS PLAINTIFF NO. 19, HAD FILED HIS SUIT IN THE AMSDEN CASE. YOU REFER SPECIFICALLY TO THE DECISION RENDERED ON JUNE 3, 1959, IN HARRINGTON V. UNITED STATES, 146 CT.CL. 218, STATING THAT THE SITUATION PRESENTED WITH RESPECT TO MONDEAU "IS IDENTICAL TO THE SITUATION OF PLAINTIFF JAMES B. HARRINGTON.'

HARRINGTON'S FIRST PETITION, CT.CL. NO. 49057, WAS FILED MARCH 11, 1949, PRIOR TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949. DECISION ON THAT PETITION WAS NOT RENDERED, HOWEVER, UNTIL JUNE 3, 1952, AFTER PASSAGE OF THE 1949 ACT. SEE 122 CT.CL. 456. QUOTED IN YOUR LETTER THE COURT STATED IN THE HARRINGTON DECISION OF JUNE 3, 1959:

"NO MENTION WAS MADE OF THE CAREER COMPENSATION ACT, AND JUDGMENT WAS RENDERED UNDER AN ENTIRELY DIFFERENT ACT AND UPON A DIFFERENT CAUSE OF ACTION. ALL OF PLAINTIFF'S RIGHTS NOW CLAIMED STEM FROM THE CAREER COMPENSATION ACT WHICH CREATED NEW AND DIFFERENT RIGHTS AND WE BELIEVE IN THIS SITUATION THE DOCTRINE OF RES JUDICATA IS INAPPLICABLE AND DOES NOT STAND AS A BAR TO THIS ACTION.'

IN BOTH THE MONDEAU AND HARRINGTON CASES THE FIRST PETITION WAS FILED IN THE COURT OF CLAIMS BEFORE ENACTMENT OF LEGISLATION ON WHICH THE SUBSEQUENT CLAIMS FOR INCREASE IN RETIRED PAY WERE ADVANCED AND DECISIONS ON THE FIRST PETITIONS WERE RENDERED SUBSEQUENT TO PASSAGE OF SUCH LEGISLATION. HOWEVER, WE BELIEVE THAT THE CASES ARE DISTINGUISHABLE.

HARRINGTON, A COMMISSIONED OFFICER IN THE DENTAL CORPS, U.S. ARMY, WAS RETIRED ON DECEMBER 31, 1938, FOR PHYSICAL DISABILITY UNDER AUTHORITY OF SECTION 1251, R.S., 10 U.S.C. 933, 1940 ED. HE SERVED ON ACTIVE DUTY AS A RETIRED OFFICER FROM JUNE 14, 1941, TO SEPTEMBER 20, 1946, INCLUSIVE. A MEMBER OF THE UNIFORMED SERVICES WHO HAD BEEN RETIRED FOR PHYSICAL DISABILITY PRIOR TO OCTOBER 1, 1949, HARRINGTON'S RETIRED PAY STATUS EFFECTIVE OCTOBER 1, 1949, CAME SQUARELY WITHIN THE SCOPE OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 823. THE COURT IN THE DECISION OF JUNE 3, 1959, INDICATES THAT IN COMMON WITH THE OTHER PLAINTIFFS THERE BEFORE THE COURT HARRINGTON HAD MADE A TIMELY ELECTION UNDER SECTION 411 TO RECEIVE DISABILITY RETIREMENT PAY COMPUTED AS PRESCRIBED IN SECTION 402 (D) (TITLE IV) OF THE 1949 ACT. SINCE THE PROVISIONS OF TITLE IV OF THE 1949 ACT WERE NOT IN FORCE WHEN HARRINGTON FILED HIS FIRST SUIT IN MARCH 1949, THE COURT DECLINED TO HOLD THAT THE DECISION RENDERED ON JUNE 3, 1952--- WHICH WAS BASED ON LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949--- IN FAVOR OF THE GOVERNMENT, RAISED THE BAR OF RES JUDICATA IN HARRINGTON'S SECOND SUIT SO AS TO DENY HIM THE BENEFITS UNDER TITLE IV OF THE 1949 LAW OF THE SELIGA CASE RULE FOR THE PERIOD OCTOBER 1, 1949, TO JUNE 3, 1952, INCLUSIVE.

MONDEAU, LIKE HARRINGTON, WAS RETIRED FOR PHYSICAL DISABILITY BEFORE OCTOBER 1, 1949, AND CONSEQUENTLY HIS RETIRED PAY STATUS, EFFECTIVE OCTOBER 1, 1949, LIKEWISE CAME WITHIN THE SCOPE OF SECTION 411 OF THE 1949 LAW. THE RECORD DOES NOT DISCLOSE THAT MONDEAU EXECUTED AN ELECTION OF OPTION (A) UNDER SECTION 411. THE ABSENCE OF AN OPTION (A) ELECTION BY MONDEAU WAS POSSIBLY DUE TO THE FACT THAT SINCE THE PHYSICAL DISABILITY FOR WHICH HE WAS PLACED ON THE RETIRED LIST ON NOVEMBER 1, 1940, WAS NOT INCURRED WHILE HE WAS IN RECEIPT OF BASIC PAY SUCH AN ELECTION BY HIM WOULD HAVE SERVED NO USEFUL PURPOSE BECAUSE HE COULD NOT QUALIFY TO COMPUTE HIS DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF SECTION 402 (D) OF THE 1949 LAW. IN THE CLAIMS DIVISION SETTLEMENT OF DECEMBER 7, 1961, MONDEAU'S ALTERNATIVE CLAIM FOR SELIGA TYPE BENEFITS WAS DISALLOWED FOR THIS PRECISE REASON.

THE RECORD LIKEWISE DOES NOT SHOW THAT MONDEAU ELECTED OPTION (B) UNDER SECTION 411 IN ORDER TO RECEIVE RETIREMENT PAY UNDER ONE OF THE TWO METHODS, (A) OR (B), PRESCRIBED IN SECTION 511 OF THE ACT. THEREFORE, UNDER THE PROVISIONS OF SECTION 519 OF THE 1949 LAW, AND SECTION 3, EXECUTIVE ORDER NO. 10124, APRIL 25, 1950, 15 F.R. 2375, HE CONTINUED TO BE ENTITLED TO RECEIVE RETIRED PAY IN THE AMOUNT AUTHORIZED BY THE APPLICABLE PROVISIONS OF LAW THAT WERE IN EFFECT ON SEPTEMBER 30, 1949, PLUS ALL THE PERCENTAGE INCREASES AUTHORIZED BY SUBSEQUENT STATUTORY PROVISIONS.

IN DECISION OF JULY 17, 1964, THE COURT OF CLAIMS HELD IN THE CASE OF CLIFFORD MAURICE SHATTUCK, PLAINTIFF NO. 8 IN BENSON, ET AL. V. UNITED STATES, CT.CL. NO. 372-59, THAT THE PROVISIONS OF SECTION 411 OF THE 1949 LAW WERE NOT APPLICABLE "AT ALL TO PERSONS (LIKE MONDEAU, FOR EXAMPLE) WHOSE RETIREMENT WAS OCCASIONED BY DISABILITIES WHICH WERE NOT SERVICE- INCURRED.' THE COURT STATED THAT SUCH A PERSON "WAS THUS REQUIRED TO MAKE NO ELECTION (OF OPTION (B) UNDER SECTION 411)" AND "WAS ENTITLED, JUST AS ANY LONGEVITY RETIREE WOULD HAVE BEEN, TO THE AUTOMATIC RECOMPUTATION (AS BETWEEN METHODS (A) AND (B) OF SECTION 511) WHICH HE SEEKS.'

MONDEAU, AS A NONSERVICE-INCURRED DISABILITY RETIREE, WAS ENTITLED UNDER THE HOLDING IN THE SHATTUCK CASE TO COMPUTE AND RECOMPUTE HS RETIRED PAY ON AND AFTER OCTOBER 1, 1949, UNDER METHOD (A) OR (B) OF SECTION 511, WHICHEVER METHOD PRODUCED THE GREATER AMOUNT OF RETIRED PAY WITHOUT REGARD TO THE FACT THAT HE HAD NOT MAKE A VALID ELECTION OF OPTION (B) UNDER SECTION 411. ON THAT BASIS ONLY MAY THE ACTION TAKEN BY OUR CLAIMS DIVISION IN THE SETTLEMENT OF DECEMBER 7, 1961, ALLOWING MONDEAU THE BENEFITS OF THE FAGAN (GOVER) RULE (METHOD (B), SECTION 511 RETIRED PAY, COMPUTED ON THE RATES OF BASIC PAY PRESCRIBED IN THE CAREER INCENTIVE ACT OF 1955) BE VIEWED AS HAVING BEEN CORRECT AND PROPER.

IT WILL THUS BE SEEN THAT, WHILE AFFIRMATIVE ACTION ON HARRINGTON'S PART WAS REQUIRED BEFORE ANY RIGHTS COULD ACCRUE TO HIM UNDER THE 1949 ACT, MONDEAU'S INCREASED PAY RIGHTS UNDER THAT ACT WAS AUTOMATIC. THE RECORD DOES NOT SHOW WHEN HARRINGTON MADE HIS SECTION 411 ELECTION. THE COURT'S DECISION OF JUNE 3, 1959, IN HIS CASE, WAS BASED ON FACTS RELATING TO ANOTHER PLAINTIFF, PHELAN, WHO MADE HIS ELECTION ON MARCH 3, 1953, AFTER JUDGMENT WAS ENTERED IN THE FIRST HARRINGTON CASE ON JUNE 3, 1952. SINCE THE COURT DID NOT RELY ON A RECORD SHOWING THAT HARRINGTON MADE AN ELECTION UNDER SECTION 411 PRIOR TO THE DATE JUDGMENT WAS ENTERED ON HIS FIRST PETITION AND THUS HAD ESTABLISHED A RIGHT TO INCREASED PAY PRIOR TO THAT DATE, THE DECISION OF JUNE 3, 1959, DOES NOT FURNISH SUFFICIENT BASIS FOR A CONCLUSION THAT MONDEAU'S RIGHTS ARE NOT GOVERNED BY THE RULE OF RES JUDICATA. HE HAD A RIGHT TO THE BENEFITS OF METHODS (A) AND (B) OF SECTION 511, WHICHEVER WAS GREATER, WHEN HE FILED HIS PETITION IN THE AMSDEN CASE IN 1954. MORE THAN FOUR YEARS ELAPSED BETWEEN THE TIME WHEN ENACTMENT OF THE CAREER INCENTIVE ACT OF 1955 MADE RECOMPUTATION OF HIS RETIRED PAY UNDER METHOD (B) TO HIS ADVANTAGE, AND DATE OF JUDGMENT, OCTOBER 9, 1959. DURING THAT TIME HE COULD HAVE AMENDED HIS PETITION TO CLAIM SUCH ADDITIONAL BENEFITS. SINCE HE FAILED TO TAKE SUCH ACTION, IT IS OUR VIEW THAT RES JUDICATA BARS CONSIDERATION OF HIS CLAIM FOR THE PERIOD PRIOR TO OCTOBER 10, 1959.

YOU PRESENT AN ALTERNATIVE CLAIM IN YOUR LETTER OF APRIL 19, 1965, FOR THE BENEFITS OF THE CALLAHAN DECISION OF FEBRUARY 14, 1964 (COURT OF CLAIMS PETITION NO. 349-62) FOR THE PERIOD "FROM AUGUST 4, 1955 TO THE DATE OF SETTLEMENT.' THE RULE OF THE CALLAHAN CASE--- ALLOWING CREDIT FOR CERTAIN "CONSTRUCTIVE" SERVICE AS DISTINGUISHED FROM "ACTUAL" SERVICE IN THE COMPUTATION OF RETIRED PAY--- APPLIED ONLY TO THE COMPUTATION OF RETIRED OR RETAINER PAY UNDER THE PROVISIONS OF TITLE II OF THE NAVAL RESERVE ACT OF 1938, CH. 690, 52 STAT. 1178 1180.

THE RECORD BEFORE US SHOWS THAT FOR THE PURPOSE OF HIS TRANSFER TO THE FLEET NAVAL RESERVE ON OCTOBER 31, 1934, MONDEAU WAS CREDITED BY THE DEPARTMENT OF THE NAVY WITH 16 YEARS, 4 MONTHS AND 26 DAYS, WHICH INCLUDED CONSTRUCTIVE SERVICE CREDIT OF 4 FULL YEARS FOR EACH OF THREE SHORT-TERM ENLISTMENTS. THIS PERIOD, PLUS THE PERIODS MAY 7 TO 30, 1918, AND JANUARY 7 TO MARCH 17, 1919, INCLUSIVE, 3 MONTHS AND 5 DAYS THAT MONDEAU WAS IN AN INACTIVE STATUS IN THE NAVAL RESERVE FORCE, TOGETHER WITH THE PERIOD HE SUBSEQUENTLY SERVED ON ACTIVE DUTY MARCH 18, 1942, TO JANUARY 26, 1946, INCLUSIVE, 3 YEARS, 10 MONTHS AND 9 DAYS, ADDS UP TO 20 YEARS, 6 MONTHS AND 10 DAYS OF SERVICE CREDITABLE IN REESTABLISHING HIS RETIRED PAY EFFECTIVE JANUARY 27, 1946, UNDER THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938, AS INTERPRETED IN THE CALLAHAN DECISION.

SINCE IT APPEARS THAT MONDEAU'S RETIRED PAY COMPUTED UNDER THE RULE OF THE CALLAHAN CASE (METHOD (A) SECTION 511) EXCEEDS THE RETIRED PAY WHICH HE HAS RECEIVED EFFECTIVE FROM OCTOBER 10, 1959, UNDER THE FAGAN (GOVER) RULE, A SUPPLEMENTAL SETTLEMENT WILL ISSUE IN HIS FAVOR ALLOWING ..END :