B-63549, FEB. 5, 1962
Highlights
WILLENBUCHER: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 5. A SIMILAR CLAIM WAS DENIED BY GENERAL ACCOUNTING OFFICE CLAIMS DIVISION SETTLEMENT DATED SEPTEMBER 18. A PETITION WAS FILED IN THE COURT OF CLAIMS. THERE WAS DEPOSITED WITH THE ATTORNEY GENERAL A MOTION TO DISMISS THE COURT ACTION TO BE HELD IN ESCROW PENDING THE SATISFACTORY SETTLEMENT OF THE MATTER IN OUR OFFICE. IT WAS POINTED OUT THAT COMMANDER BERRY WAS THE PLAINTIFF IN THE CASE OF BERRY V. INASMUCH AS THE CLAIM THEN BEFORE OUR OFFICE COULD HAVE BEEN INCLUDED IN THE PETITION. THE JUDGMENT WAS DETERMINATIVE NOT ONLY OF THE MATTERS LITIGATED BUT ALSO AS TO ALL RELEVANT ISSUES WHICH COULD HAVE BEEN RAISED BUT WERE NOT LITIGATED IN THE SUIT.
B-63549, FEB. 5, 1962
TO MR. FRANZ O. WILLENBUCHER:
REFERENCE IS MADE TO YOUR LETTER OF JANUARY 5, 1962, PRESENTING A CLAIM IN BEHALF OF COMMANDER ALBERT G. BERRY, USNR, RETIRED, FOR ADDITIONAL RETIRED PAY FOR THE PERIOD FROM THE DATE OF HIS FIRST RETIREMENT FEBRUARY 1, 1947, TO MARCH 1, 1953, BY THE INCLUSION OF SERVICE AS MIDSHIPMAN AT THE NAVAL ACADEMY UNDER AN APPOINTMENT MADE PRIOR TO MARCH 4, 1913, IN THE COMPUTATION OF RETIRED PAY.
A SIMILAR CLAIM WAS DENIED BY GENERAL ACCOUNTING OFFICE CLAIMS DIVISION SETTLEMENT DATED SEPTEMBER 18, 1958. ON MARCH 9, 1959, A PETITION WAS FILED IN THE COURT OF CLAIMS, CT.CL. NO. 108-59, SEEKING ADDITIONAL RETIRED PAY ON THE SAME BASIS. SUBSEQUENTLY, THERE WAS DEPOSITED WITH THE ATTORNEY GENERAL A MOTION TO DISMISS THE COURT ACTION TO BE HELD IN ESCROW PENDING THE SATISFACTORY SETTLEMENT OF THE MATTER IN OUR OFFICE. IN OUR DECISION DATED JULY 1, 1959, B-63549, IT WAS POINTED OUT THAT COMMANDER BERRY WAS THE PLAINTIFF IN THE CASE OF BERRY V. UNITED STATES, 123 CT.CL. 530, DECIDED OCTOBER 7, 1952, WHEREIN THE COURT DENIED HIS CLAIM FOR ADDITIONAL RETIRED PAY FROM FEBRUARY 1, 1947, AND INASMUCH AS THE CLAIM THEN BEFORE OUR OFFICE COULD HAVE BEEN INCLUDED IN THE PETITION, THE JUDGMENT WAS DETERMINATIVE NOT ONLY OF THE MATTERS LITIGATED BUT ALSO AS TO ALL RELEVANT ISSUES WHICH COULD HAVE BEEN RAISED BUT WERE NOT LITIGATED IN THE SUIT. WE THEN HELD THAT SUCH DETERMINATION INCLUDED PERIODS BEFORE AND AFTER THE DATE OF THE COURT'S JUDGMENT AND OUR OFFICE WOULD NOT TAKE ACTION INCONSISTENT WITH THE RESULT WHICH WOULD BE REACHED IF THE MATTERS THERE INVOLVED WERE AGAIN CONSIDERED BY THE COURT. THE DISALLOWANCE SETTLEMENT OF SEPTEMBER 18, 1958, WAS SUSTAINED.
ON OCTOBER 13, 1961, A JUDGMENT WAS ENTERED IN FAVOR OF COMMANDER BERRY IN THE SUM OF $6,284.13 FOR THE PERIOD MARCH 1, 1953, THROUGH JUNE 30, 1961, IN CASE NO. 108-59, IN THE COURT OF CLAIMS. THIS JUDGMENT WAS PREDICATED ON A STIPULATION BETWEEN THE PARTIES FILED IN THE COURT ON JUNE 16, 1961.
IN YOUR LETTER YOU STATE THAT THE JUDGMENT ALLOWED RETIRED PAY ONLY FOR A PERIOD OF SIX YEARS PRIOR TO DATE OF FILING OF THE PETITION. IT IS CONTENDED THAT THERE IS DUE AND OWING TO COMMANDER BERRY ADDITIONAL RETIRED PAY FOR THE PERIOD PRIOR TO MARCH 1, 1953, AND THAT CLAIM IS RENEWED FOR THE PERIOD FROM THE DATE OF FIRST RETIREMENT, FEBRUARY 1, 1947, TO MARCH 1, 1953. IT IS CONTENDED, IN THE ALTERNATIVE, THAT IF THE DOCTRINE OF RES ADJUDICATA IS APPLIED, PAYMENT SHOULD BE MADE FOR THE PERIOD BETWEEN THE TWO COURT ACTIONS.
INSOFAR AS THE PERIOD FROM FEBRUARY 1, 1947 (DATE OF FIRST RETIREMENT) THROUGH OCTOBER 7, 1952 (DATE OF DECISION IN THE CASE OF BERRY V. UNITED STATES, 123 CT.CL. 530) IS CONCERNED, WE ADHERE TO OUR DECISION OF JULY 1, 1959, B-63549, THAT THE COURT OF CLAIMS DENIAL OF INCREASED RETIRED PAY WAS DETERMINATIVE OF ALL CLAIMS WHICH MIGHT HAVE BEEN INCLUDED IN THE ACTION THERE CONSIDERED FOR PERIODS PRIOR TO THE DECISION. HOWEVER, AS TO THE PERIOD SUBSEQUENT TO THE DATE OF THAT DECISION, SINCE THE PRESENT CLAIM IS PREDICATED ON A SEPARATE AND DISTINCT BASIS FROM THAT CONSIDERED IN THE EARLIER CLAIM, WE NOW CONSIDER THAT THE EARLIER COURT DECISION DOES NOT SERVE AS A BAR TO THE PERIOD FROM OCTOBER 8, 1952, THROUGH FEBRUARY 28, 1953. SEE CLARK, ET AL. V. UNITED STATES, CT.CL. NO. 45-55, DECIDED JUNE 8, 1960, AND REGISTER V. UNITED STATES, CT.CL. NO. 207-59, DECIDED JULY 15, 1960.
ACCORDINGLY, A SETTLEMENT WILL BE STATED IN FAVOR OF COMMANDER BERRY FOR INCREASED RETIRED PAY FOR THE PERIOD OCTOBER 8, 1952, THROUGH FEBRUARY 28, 1953.