B-110493, AUGUST 5, 1963, 43 COMP. GEN. 117

B-110493, AUGUST 5, 1963, 43 COMP. GEN. 117

PAY - RETIRED - DISABILITY - RE-RETIREMENT - ELECTION REQUIREMENT - DISABILITY DETERMINATION A RETIRED NAVY ENLISTED MEMBER WHO CLAIMS INCREASED RETIRED PAY FOR A DISABILITY RETIREMENT AND SELIGA (137 CT.CL. 710) TYPE BENEFITS AND SUBMITS A MEDICAL SURVEY REPORT AS EVIDENCE UNDER THE WILSON CASE (CT.CL. NO. 465-59, DECIDED NOV. 7, 1962) IN WHICH THE COURT HELD THAT A MEMBER'S REQUEST FOR EVALUATION OF HIS PHYSICAL DISABILITY UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 AND THE NAVY'S RESPONSE THAT HIS CASE DID NOT COME UNDER THAT SECTION CONSTITUTE AN ADEQUATE ELECTION MAY NOT HAVE THE UNCERTAINTIES IN THAT CASE APPLIED TO BRING HIS RETIRED STATUS WITHIN THE WILSON CASE WHEN THE RECORD DOES NOT SHOW A VALID SECTION 411 ELECTION REQUIRED OF ALL MEMBERS RETIRED FOR PHYSICAL DISABILITY PRIOR TO OCTOBER 1, 1949--- THE DATE OF THE CAREER COMPENSATION ACT--- OR THAT THE MEMBER WAS MISLED SO AS NOT TO ELECT AT ALL.

TO KING AND KING, AUGUST 5, 1963:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 5, 1963, AND ENCLOSURE, REQUESTING RECONSIDERATION OF SETTLEMENT DATED MARCH 21, 1963, IN WHICH OUR CLAIMS DIVISION DISALLOWED THE CLAIM RECEIVED HERE ON JANUARY 29, 1963, SUBMITTED BY YOU ON BEHALF OF JOHN SILAS UPTON, A RETIRED ENLISTED MEMBER OF THE REGULAR NAVY, FOR INCREASED RETIRED PAY EFFECTIVE FROM JANUARY 1, 1953, BELIEVED DUE HIM UNDER THE RULE OF THE SELIGA DECISION OF MARCH 6, 1957, 137 CT.CL. 710.

AS PLAINTIFF NO. 126 IN THE CASE OF PRENDABLE, ET AL. V. UNITED STATES, CT.CL. NO. 42-56, MR. UPTON CLAIMED INCREASED RETIRED PAY FOR THE PERIOD FROM JULY 1, 1952, THROUGH DATE OF JUDGMENT. IT WAS POINTED OUT IN THE SETTLEMENT OF MARCH 21, 1963, THAT SINCE MR. UPTON'S ACTION ON COURT OF CLAIMS PETITION NO. 42-56 WAS DISMISSED ON THE MERITS BY THE COURT ON JULY 12, 1957, 139 CT.CL. 748, THE BAR OF RES JUDICATA PRECLUDED ANY ACTION BY THIS OFFICE ON THAT PART OF HIS PRESENT CLAIM COVERING THE PERIOD PRECEDING JULY 13, 1957. YOUR REQUEST FOR REVIEW OF THE SETTLEMENT OF MARCH 21, 1963, BEING SILENT IN THAT RESPECT DOES NOT RAISE ANY ISSUE AS TO THE PERIOD BARRED UNDER THE RULE OF RES JUDICATA.

THE DEPARTMENT OF THE NAVY HAS REPORTED THAT MR. UPTON WAS TRANSFERRED TO THE FLEET NAVAL RESERVE IN JUNE 1928 AND THAT HE THEREAFTER SERVED ON ACTIVE DUTY FROM OCTOBER 17, 1940, TO DECEMBER 31, 1941. ON JANUARY 1, 1942, HE REVERTED TO AN INACTIVE DUTY STATUS AND WAS PLACED ON THAT SAME DATE ON THE RETIRED LIST OF THE REGULAR NAVY AS WITH OVER 30 YEARS' CREDITABLE SERVICE. HE AGAIN SERVED ON ACTIVE DUTY FROM JANUARY 2, 1942, TO DECEMBER 15, 1945, INCLUSIVE.

THE CLAIM NOW PRESENTED FOR INCREASED RETIRED PAY, COMPUTED UNDER THE PROVISIONS OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 271 (1952 ED.), TOGETHER WITH THE BENEFITS OF THE SELIGA RULE, WAS DISALLOWED IN THE SETTLEMENT OF MARCH 21, 1963, FOR THE REASON THAT AS SHOWN BY THE RECORD HERE MR. UPTON WAS NOT RETIRED FOR PHYSICAL DISABILITY AND CONSEQUENTLY HIS RETIRED STATUS DID NOT COME WITHIN THE SCOPE OF SECTION 411 OF THE 1949 LAW, CH. 681, 63 STAT. 823, 37 U.S.C. 281 (1952 ED.). YOU STATE THAT THE ENCLOSURE (COPY OF "NMS-FORM M REPORT OF MEDICAL SURVEY," DATED NOVEMBER 8, 1945), FORWARDED HERE WITH YOUR LETTER OF APRIL 5, 1963, OVERCOMES THE CONCLUSION REACHED IN THE DISALLOWANCE OF MARCH 21, 1963, BY ESTABLISHING THAT MR. UPTON WAS ,RE-RETIRED" ON DECEMBER 16, 1945, FOR A PHYSICAL DISABILITY UNDER CIRCUMSTANCES WHICH BRING HIM WITHIN THE SCOPE OF SECTION 411 AND THE RULE OF THE WILSON CASE, CT.CL. NO. 465- 59, DECIDED NOVEMBER 7, 1962.

IN THE WILSON DECISION OF NOVEMBER 7, 1962, THE COURT HELD THAT WILSON'S REQUEST FOR AN EVALUATION OF HIS PHYSICAL DISABILITY UNDER SECTION 411 AND THE NAVY'S RESPONSE THAT HIS CASE DID NOT COME UNDER THAT SECTION "CONSTITUTED AN ADEQUATE ELECTION.' THE UNCERTAINTIES INHERENT IN THAT HOLDING PRECLUDE ITS BROAD ACCEPTANCE BY THIS OFFICE AS A PRECEDENT FOR PAYMENT, SOLELY ON THAT BASIS, OF SELIGA-TYPE BENEFITS IN OTHER SIMILAR CASES AND THE QUESTION WHETHER AN INDIVIDUAL EXERCISED A PROPER AND VALID SECTION 411 ELECTION, OR WAS MISLED SO AS NOT TO ELECT AT ALL, IS FOR DETERMINATION FROM ALL THE FACTS AND CIRCUMSTANCES PRESENTED IN EACH INDIVIDUAL CASE SUBMITTED FOR ACTION HERE.

THE RECORD BEFORE US WITH RESPECT TO MR. UPTON DOES NOT DISCLOSE ANY FACTS WHICH WOULD APPEAR TO BRING HIS RETIRED PAY STATUS WITHIN THE PURVIEW OF THE WILSON DECISION, NOR IS THERE ANY INDICATION IN THE RECORD THAT HE MADE, OR WAS DETERRED FROM MAKING BY REASON OF BEING MISLED, THE ELECTION WHICH ALL PERSONNEL OF THE UNIFORMED SERVICES WHO WERE RETIRED FOR PHYSICAL DISABILITY PRIOR TO OCTOBER 1, 1949, WERE REQUIRED TO MAKE WITHIN THE 5-YEAR PERIOD PRESCRIBED IN SECTION 411. ACCORDINGLY, THE DISALLOWANCE OF MR. UPTON'S CLAIM IN THE SETTLEMENT OF MARCH 21, 1963, IS SUSTAINED.