B-128594, SEP. 11, 1961

B-128594: Sep 11, 1961

Additional Materials:

Contact:

Shirley Jones
(202) 512-8156
jonessa@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

KING AND KING: REFERENCE IS MADE TO YOUR LETTER OF MAY 16. THE CLAIM WAS DISALLOWED FOR THE REASON THAT IN A LETTER DATED APRIL 28. THE DEPARTMENT OF THE NAVY STATED "THE DISABILITY FOR WHICH HOWARD WAS RETIRED WAS NOT INCURRED BY HIM WHILE HE WAS IN RECEIPT OF BASIC PAY.'. WOULD HAVE PRECLUDED HOWARD FROM RECEIVING ANY BENEFITS UNDER THE SELIGA DECISION BECAUSE HE WOULD THEN HAVE BEEN UNABLE TO QUALIFY FOR THE DISABILITY RETIRED PAY PRESCRIBED IN TITLE IV OF THE CAREER COMPENSATION ACT OF 1949. WE ARE NOW ADVISED BY THE DEPARTMENT OF THE NAVY THAT SUCH STATEMENT "IS ERRONEOUS AND IS CANCELLED.'. IT IS CONCLUDED THAT ON THE BASIS OF THE EVIDENCE NOW OF RECORD HOWARD MAY BE CONSIDERED AS ENTITLED TO COMPUTE HIS RETIRED PAY IN ACCORDANCE WITH THE HOLDING IN THE SELIGA CASE.

B-128594, SEP. 11, 1961

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

REFERENCE IS MADE TO YOUR LETTER OF MAY 16, 1961, REQUESTING REVIEW OF SETTLEMENT MAY 12, 1961, WHICH DISALLOWED THE CLAIM OF CHARLIE D. HOWARD, U.S. NAVY, RETIRED, FOR INCREASED RETIRED PAY UNDER THE RULE OF THE SELIGA CASE (137 CT.CL. 710).

THE CLAIM WAS DISALLOWED FOR THE REASON THAT IN A LETTER DATED APRIL 28, 1961, THE DEPARTMENT OF THE NAVY STATED "THE DISABILITY FOR WHICH HOWARD WAS RETIRED WAS NOT INCURRED BY HIM WHILE HE WAS IN RECEIPT OF BASIC PAY.' THAT FACT, IF CORRECT, WOULD HAVE PRECLUDED HOWARD FROM RECEIVING ANY BENEFITS UNDER THE SELIGA DECISION BECAUSE HE WOULD THEN HAVE BEEN UNABLE TO QUALIFY FOR THE DISABILITY RETIRED PAY PRESCRIBED IN TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816. WE ARE NOW ADVISED BY THE DEPARTMENT OF THE NAVY THAT SUCH STATEMENT "IS ERRONEOUS AND IS CANCELLED.' ACCORDINGLY, IT IS CONCLUDED THAT ON THE BASIS OF THE EVIDENCE NOW OF RECORD HOWARD MAY BE CONSIDERED AS ENTITLED TO COMPUTE HIS RETIRED PAY IN ACCORDANCE WITH THE HOLDING IN THE SELIGA CASE.

HOWARD IS PLAINTIFF NO. 17 IN THE CASE OF AFLAGUE, ET AL. V. UNITED STATES, CT.CL.NO. 212-56, NOW PENDING IN THE COURT OF CLAIMS. IN DECEMBER 1960 WE WERE ADVISED BY THE DEPARTMENT OF JUSTICE THAT A MOTION TO DISMISS THE PETITION AS TO HOWARD HAD BEEN FILED WITH THAT DEPARTMENT TO BE HELD IN ESCROW PENDING ADMINISTRATIVE SETTLEMENT OF THE CLAIM BY THIS OFFICE. IN VIEW OF YOUR LETTER OF MAY 16, 1961, IT IS PRESUMED THAT SUCH MOTION REMAINS IN ESCROW WITH THE DEPARTMENT OF JUSTICE.

HOWARD ALSO WAS PLAINTIFF NO. 128 IN THE CASE OF EBINGER, ET AL. V. UNITED STATES, CT.CL. 49615, AND ON OCTOBER 6, 1953, THE COURT ENTERED A JUDGMENT IN HIS FAVOR ALLOWING HIM ADDITIONAL RETIRED PAY UNDER THE SANDERS RULE (120 CT.CL. 501) FOR THE PERIOD JULY 7, 1943, TO JUNE 30, 1952, INCLUSIVE. THAT JUDGMENT WAS BASED ON A STIPULATION AGREEMENT BETWEEN THE PLAINTIFF AND THE DEFENDANT (GOVERNMENT) REFLECTING THE COMPUTATION THAT WAS FURNISHED TO THE ATTORNEY GENERAL BY THE DEPARTMENT OF THE NAVY IN NAVY FINANCE CENTER LETTER DATED SEPTEMBER 19, 1952. THE RECORD INDICATES THAT YOU ARE WILLING TO ACCEPT THE BAR OF RES JUDICATA WITH RESPECT TO THE PERIOD PRECEDING JULY 1, 1952. HOWEVER, THE PERTINENT PROVISIONS OF THE JUDGMENT OF OCTOBER 6, 1953, AND PARAGRAPH 8 OF THE STIPULATION AGREEMENT ON WHICH SUCH JUDGMENT IS BASED ARE 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 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 ON 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 VIEWED THE STIPULATION AGREEMENT IN THAT CASE AS COVERING ONLY THE PERIOD NOVEMBER 7, 1945, (1946), TO SEPTEMBER 30, 1949, AND HENCE DIRECTED THAT THE JUDGMENT OF APRIL 7, 1953,"BE AMENDED TO ACCORD WITH THE STIPULATION.' THE COURT'S OPINION AND ITS ACTION IN THE CASE INDICATE QUITE CLEARLY ITS VIEW THAT UNLESS THE JUDGMENT OF APRIL 7, 1953, WAS SO AMENDED IT WOULD BE RES JUDICATA TO THE DATE THEREOF.

AS PREVIOUSLY INDICATED, THE PERTINENT PROVISIONS OF PARAGRAPH 8 OF THE STIPULATION AGREEMENT AND THE JUDGMENT IN HOWARD'S CASE ARE THE SAME AS THOSE CONSIDERED BY THE COURT IN THE HERBERT DECISION OF JULY 19, 1961. THEREFORE, IN THE ABSENCE OF AN AMENDMENT BY THE COURT OF JUDGMENT OF OCTOBER 6, 1953, EFFECTIVELY RESTRICTING THE BAR OF RES JUDICATA TO THE PERIOD PRIOR TO JULY 1, 1952, NO PART OF HOWARD'S CLAIM MAY BE ALLOWED WITH RESPECT TO THE PERIOD PRECEDING OCTOBER 7, 1953. IT SEEMS DOUBTFUL THAT A SETTLEMENT FOR THE PERIOD COMMENCING OCTOBER 7, 1953, WOULD BE SATISFACTORY TO YOU SO AS TO AUTHORIZE DISMISSAL OF PETITION NO. 212-56 (AS TO HOWARD, PLAINTIFF NO. 17). IN THE ABSENCE OF A STATEMENT FROM YOU, INDICATING THAT YOU AGREE TO SUCH ACTION, NO FURTHER ACTION WILL BE TAKEN BY THIS OFFICE ON THE CLAIM PENDING HERE.

Jan 19, 2021

Jan 14, 2021

Looking for more? Browse all our products here