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B-129993, NOV. 3, 1960

B-129993 Nov 03, 1960
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RETIRED: REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 4. YOUR CLAIM WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED SEPTEMBER 28. THERE IS NO AUTHORITY FOR FURTHER CONSIDERATION OF YOUR CLAIM. YOU STATE THAT YOUR CLAIM BEFORE OUR OFFICE WAS NOT CONSIDERED ON ITS MERITS AND THAT THE DECISION IN THE COURT OF CLAIMS ACTION IS NOT APPLICABLE. SINCE YOUR PRESENT CLAIM IS FOR PERIODS SUBSEQUENT TO THE DATE OF JUDGMENT IN THE COURT ACTION. MORE COMPLETE QUOTATION FROM THAT DECISION IS AS FOLLOWS: "INSOFAR AS PLAINTIFF SEEKS THE ACTIVE DUTY AND RETIRED PAY OF A LIEUTENANT. HIS CLAIM IS PLAINLY BARRED BY THE DOCTRINE OF RES JUDICATA FOR THE PERIOD COVERED BY OUR FORMER JUDGMENT. WE DECIDED IN THE FORMER CASE THAT PLAINTIFF WAS ENTITLED TO THE ACTIVE DUTY AND RETIRED PAY OF A LIEUTENANT.

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B-129993, NOV. 3, 1960

TO CAPTAIN CLARENCE H. SCHILDHAUER, USNR, RETIRED:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 4, 1960, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR ADJUSTMENT OF RETIRED PAY TO INCLUDE INACTIVE SERVICE AS A MEMBER OF THE UNITED STATES NAVAL RESERVE FOR PERCENTAGE MULTIPLE PURPOSES UNDER THE PROVISIONS OF SECTION 511 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, AS AMENDED. YOUR CLAIM WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED SEPTEMBER 28, 1960, FOR THE REASON THAT YOUR PETITION IN THE UNITED STATES COURT OF CLAIMS FOR ADJUSTMENT OF RETIRED PAY HAD BEEN DISMISSED (LEO J. BROYDERICK, ET AL. (CLARENCE H. SCHILDHAUER, PLAINTIFF NO. 10) V. UNITED STATES, CT.CL.NO. 491-56, 140 CT.CL. 427) ON THE MERITS AND THAT PURSUANT TO THE PROVISIONS OF SECTION 2519 OF TITLE 28, UNITED STATES CODE, PROVIDING THAT A FINAL JUDGMENT OF THE COURT OF CLAIMS AGAINST A PLAINTIFF FOREVER BARS ANY FURTHER CLAIM, SUIT, OR DEMAND AGAINST THE UNITED STATES ARISING OUT OF THE MATTERS INVOLVED IN THE CASE OR CONTROVERSY, THERE IS NO AUTHORITY FOR FURTHER CONSIDERATION OF YOUR CLAIM.

YOU STATE THAT YOUR CLAIM BEFORE OUR OFFICE WAS NOT CONSIDERED ON ITS MERITS AND THAT THE DECISION IN THE COURT OF CLAIMS ACTION IS NOT APPLICABLE, SINCE YOUR PRESENT CLAIM IS FOR PERIODS SUBSEQUENT TO THE DATE OF JUDGMENT IN THE COURT ACTION. IN SUPPORT OF YOUR POSITION YOU CITE AND QUOTE A PART OF THE DECISION IN THE RECENT COURT OF CLAIMS CASE, JOHN W. REGISTER V. UNITED STATES, CT.CL.NO. 207-59, DECIDED JULY 15, 1960. MORE COMPLETE QUOTATION FROM THAT DECISION IS AS FOLLOWS:

"INSOFAR AS PLAINTIFF SEEKS THE ACTIVE DUTY AND RETIRED PAY OF A LIEUTENANT, HIS CLAIM IS PLAINLY BARRED BY THE DOCTRINE OF RES JUDICATA FOR THE PERIOD COVERED BY OUR FORMER JUDGMENT. WE DECIDED IN THE FORMER CASE THAT PLAINTIFF WAS ENTITLED TO THE ACTIVE DUTY AND RETIRED PAY OF A LIEUTENANT, JUNIOR GRADE. THAT WAS A FINAL JUDGMENT ON THAT QUESTION AND IT CANNOT BE LITIGATED AGAIN. SEE 28 U.S.C. SEC. 2517.

"IT IS TRUE THAT IN OUR FORMER DECISION WE DID NOT CONSIDER NOR DECIDE THE QUESTION OF PLAINTIFF'S RIGHT TO THE RETIRED PAY OF A LIEUTENANT. HOWEVER, SINCE PLAINTIFF COULD AND SHOULD HAVE RAISED THIS QUESTION IN THE FORMER LITIGATION, OUR JUDGMENT THERE BARS HIM FROM NOW MAKING THIS CLAIM AS TO THE PERIOD PREVIOUSLY COVERED BY THE FIRST SUIT. E. G. CLARK V. UNITED STATES, CT.CL.NO. 45-55, DECIDED JUNE 8, 1960. PLAINTIFF, HOWEVER, IS NOT ESTOPPED TO RAISE THE QUESTION AS TO THE PERIOD SUBSEQUENT TO OUR FORMER JUDGMENT, SINCE, AS WE HAVE STATED, THE ISSUE WAS NOT PREVIOUSLY DECIDED. ABARR V. UNITED STATES, 139 CT.CL. 748.'

IT WILL BE NOTED THAT IN THE REGISTER CASE THE COURT SPECIFICALLY POINTS OUT THAT IN THE EARLIER LITIGATION THE QUESTION RAISED WAS PLAINTIFF'S RIGHT TO THE ACTIVE DUTY AND RETIRED PAY OF A LIEUTENANT, JUNIOR GRADE. HIS GRADE FOR THE PERIOD WAS NOT IN ISSUE, BUT COULD HAVE BEEN PLACED IN ISSUE AND HENCE WAS NOT SUBJECT TO FURTHER LITIGATION FOR THE PERIOD THERE CONSIDERED PURSUANT TO SECTION 2517 OF TITLE 28, UNITED STATES CODE. THE COURT POINTS OUT THAT SINCE THE ISSUE OF GRADE WAS NOT DECIDED, PLAINTIFF COULD LITIGATE THAT QUESTION FOR SUBSEQUENT PERIODS. IN YOUR PRESENT CLAIM--- FOR THE CREDITING OF INACTIVE TIME IN THE NAVAL RESERVE FOR PERCENTAGE MULTIPLE PURPOSES IN THE COMPUTATION OF RETIRED PAY FOR THE PERIOD FOLLOWING THE EARLIER LITIGATION--- THE ISSUE IS THE SAME AS THAT DETERMINED IN YOUR ACTION BEFORE THE COURT OF CLAIMS. THE SOLE DIFFERENCE IS THE PERIOD FOR WHICH CLAIM IS MADE. UNDER THIS CIRCUMSTANCE WE ARE OF THE OPINION THAT YOUR PRESENT CLAIM IS WITHIN THE PROVISIONS OF SECTION 2519 OF TITLE 28, UNITED STATES CODE, AND MAY NOT BE GIVEN FURTHER CONSIDERATION.

ACCORDINGLY, THE SETTLEMENT OF SEPTEMBER 28, 1960, UPON REVIEW, IS SUSTAINED.

IN YOUR LETTER YOU HAVE CITED AND QUOTED FROM SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, AND AS AMENDED, 66 STAT. 80. THE QUOTATIONS ARE NOT COMPLETE. IN ITS ENTIRETY, THE FOURTH PROVISO OF SECTION 511, AS AMENDED, IS AS FOLLOWS:

"PROVIDED FURTHER, THAT FOR THE PURPOSES OF THIS SECTION THE TERM "ACTIVE SERVICE" AS USED HEREIN SHALL MEAN ALL SERVICE AS A MEMBER OR AS A FORMER MEMBER OF THE UNIFORMED SERVICES, SERVICE AS A CADET OR MIDSHIPMAN IN THE CASE OF THOSE MEMBERS APPOINTED TO THE UNITED STATES MILITARY ACADEMY PRIOR TO AUGUST 24, 1912, OR TO THE UNITED STATES NAVAL ACADEMY PRIOR TO MARCH 4, 1913, IF SUCH SERVICE WAS CREDITABLE FOR LONGEVITY PAY PURPOSES AT THE TIME OF RETIREMENT, OR AS A NURSE, OR AS A CONTRACT NURSE PRIOR TO FEBRUARY 2, 1901, OR AS A RESERVE NURSE SUBSEQUENT TO FEBRUARY 2, 1901, OR AS A CONTRACT SURGEON, OR AS A CONTRACT DENTAL SURGEON, OR AS AN ACTING DENTAL SURGEON, OR AS A VETERINARIAN IN THE QUARTERMASTER DEPARTMENT, CAVALRY, OR FIELD ARTILLERY, OR AS AN ARMY FIELD CLERK OR AS A FIELD CLERK, ARMY QUARTERMASTER CORPS, WHILE ON THE ACTIVE LIST OR ON ACTIVE DUTY OR WHILE PARTICIPATING IN FULL-TIME TRAINING OR OTHER FULL-TIME DUTY PROVIDED FOR OR AUTHORIZED IN THE NATIONAL DEFENSE ACT, AS AMENDED, THE NAVAL RESERVE ACT OF 1938, AS AMENDED, OR IN OTHER PROVISIONS OF LAW, INCLUDING PARTICIPATION IN EXERCISES OR PERFORMANCE OF THE DUTIES PROVIDED FOR BY SECTIONS 5, 81, 92, 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED, AND IN THE CASE OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, THAT SERVICE WHICH IS CREDITABLE PURSUANT TO PART (3) OF SECTION 412 OF THIS ACT: * * *.'

THE UNDERSCORING IN THE ABOVE QUOTATION INDICATES THE PROPER APPLICATION OF THE PROVISO TO THE CIRCUMSTANCES OF YOUR CASE. IT ALSO MAY BE POINTED OUT THAT THE PHRASE "IF SUCH SERVICE WAS CREDITABLE FOR LONGEVITY PAY PURPOSES AT THE TIME OF RETIREMENT" IS APPLICABLE ONLY TO CERTAIN CADET AND MIDSHIPMAN SERVICE THEREIN STATED, AND HAS VERY LIMITED, NOT GENERAL, APPLICATION.

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