B-110008, DECEMBER 2, 1960, 40 COMP. GEN. 319

B-110008, DECEMBER 2, 1960, 40 COMP. GEN. 319

MILITARY PERSONNEL - RE-RETIREMENT - SUBSEQUENT TO OCTOBER 1, 1949 - JUDGMENT BASED ON ADMISSION OF LIABILITY NOTWITHSTANDING THAT A JUDGMENT FOR INCREASED RETIRED PAY UNDER PARAGRAPH 4, SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, TO AN OFFICER WHO HAD SERVICE PRIOR TO NOVEMBER 12, 1918, BUT WHO WAS NOT RE RETIRED UNTIL AFTER OCTOBER 1, 1949--- EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949-- - WAS BASED SOLELY ON THE GOVERNMENT'S ADMISSION OF LIABILITY, THE MATTER OF INCREASED RETIRED PAY FOR THE PERIOD OF THE JUDGMENT IS RES JUDICATA AND SINCE SEVERAL ADMISSIONS OF LIABILITY HAVE BEEN FILED IN OTHER CASES WHICH PRESENT THE SAME FACTUAL SITUATION (RE-RETIREMENT SUBSEQUENT TO SEPTEMBER 30, 1949) THERE IS NO BASIS FOR FURTHER LITIGATION AS TO THE PERIOD SUBSEQUENT TO JUDGMENT AND PAYMENT MAY BE MADE ON THE BASIS OF THE JUDGMENT FOR THE SUBSEQUENT PERIODS.

TO JOHN M. AMSTADT, DEPARTMENT OF COMMERCE, DECEMBER 2, 1960:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 20, 1960, REQUESTING AN ADVANCE DECISION WHETHER PAYMENT OF INCREASED RETIRED PAY IS AUTHORIZED TO LIEUTENANT COMMANDER DANIEL E. WHELAN, JR., RETIRED, U.S. COAST AND GEODETIC SURVEY, EFFECTIVE FROM JULY 13, 1960, IN VIEW OF THE JUDGMENT ENTERED IN HIS FAVOR ON SEPTEMBER 9, 1960, BY THE COURT OF CLAIMS ( DANIEL E. WHELAN, JR. V. UNITED STATES, CT. CL. NO. 469-57) COVERING THE PERIOD FROM JULY 1, 1953, TO JULY 12, 1960.

THE FACTS CONCERNING COMMANDER WHELAN'S DISABILITY RETIRED PAY STATUS ARE BRIEFLY AS FOLLOWS: HE SERVED IN THE MILITARY FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, AND HE WAS RETIRED FROM THE COAST AND GEODETIC SURVEY ON JULY 12, 1926, BY REASON OF PHYSICAL DISABILITY. HE WAS RECALLED AND SERVED ON ACTIVE DUTY DURING THE PERIOD AUGUST 16, 1943, TO JUNE 30, 1953, ON WHICH LATTER DATE HIS ACTIVE DUTY PAY WAS THAT OF A LIEUTENANT COMMANDER WITH OVER 30 YEARS' CREDITABLE SERVICE, ACTIVE AND INACTIVE. PURSUANT TO HIS ELECTION MADE UNDER AUTHORITY OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, 37 U.S.C. 281 (1952 USED.), TO QUALIFY FOR DISABILITY RETIRED PAY UNDER THE PROVISIONS OF TITLE V OF THAT ACT, HE WAS PAID DISABILITY RETIRED PAY EFFECTIVE FROM JULY 1, 1953, COMPUTED AS PROVIDED IN SECTION 402 (D), 63 STAT. 818, 37 U.S.C. 272 (D), AT THE RATE OF 60 PERCENT (REPRESENTING THE PERCENTAGE OF HIS DISABILITY) OF THE MONTHLY BASIC PAY OF A LIEUTENANT COMMANDER WITH OVER 18, BUT NOT OVER 22, CUMULATIVE YEARS OF SERVICE, REFLECTING ALL CREDITABLE SERVICE AS OF JULY 2, 1926, THE DATE OF HIS RETIREMENT, PLUS ALL HIS SUBSEQUENT ACTIVE SERVICE TO JUNE 30, 1953.

COMMANDER WHELAN CLAIMED ADDITIONAL RETIRED PAY UNDER THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, 37 U.S.C. 115, SINCE HE SERVED IN THE MILITARY FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918. BASED ON THE "RE-RETIREMENT" CONCEPT ADOPTED BY THE COURT OF CLAIMS WITH RESPECT TO THE PROVISIONS OF PARAGRAPH 4, SECTION 15, IT WAS CONTENDED IN THE PETITION THAT THE PLAINTIFF, HAVING BEEN "RE-RETIRED" ON JULY 1, 1953, WAS ENTITLED TO RECEIVE RETIRED PAY EFFECTIVE FROM THAT DATE COMPUTED AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY PAY HE WAS RECEIVING AT THE DATE OF HIS "RE- RETIREMENT.'

IN ALL OF THE CASES DECIDED TO DATE BY THE COURT OF CLAIMS INVOLVING THE "RE-RETIREMENT" CONCEPT OF PARAGRAPH 4, SECTION 15, OF THE 1942 LAW (SEE THE GORDON, FIELD AND SHERFEY DECISIONS, 134 CT. CL. 840, 141 CT. CL. 312 AND 141 CT. CL. 307, RESPECTIVELY,AS WELL AS CARROLL V. UNITED STATES, 117 CT. CL. 53, AND DANIELSON V. UNITED STATES, 121 CT. CL. 533), THE DATE OF "RE-RETIREMENT" IN EACH INSTANCE WAS PRIOR TO THE EFFECTIVE DATE, OCTOBER 1, 1949, OF THE CAREER COMPENSATION ACT OF 1949. THUS, WHILE THIS OFFICE HAS BEEN FOLLOWING THE RULE OF THOSE CASES WHERE "RE-RETIREMENT" UNDER THE PROVISIONS OF PARAGRAPH 4, SECTION 15, OCCURRED PRIOR TO OCTOBER 1, 1949, WE HAVE BEEN SEEKING A JUDICIAL DETERMINATION CONCERNING THE APPLICABILITY OF CERTAIN PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 IN CASES SUCH AS THAT OF COMMANDER WHELAN WHERE SUCH "RE-RETIREMENT" WAS SUBSEQUENT TO SEPTEMBER 30, 1949. SEE, IN THIS CONNECTION, DECISION OF NOVEMBER 5, 1958, 38 COMP. GEN. 348, IN THE CASE OF MAJOR VAN RENSSELAER VESTAL, UNITED STATES ARMY, RETIRED (AN OFFICER WITH SERVICE PRIOR TO NOVEMBER 12, 1918, AND THUS WITHIN THE SCOPE OF PARAGRAPH 4, SECTION 15), WHO WAS TWICE "RE-RETIRED"--- FIRST ON JULY 31, 1948, AND, AFTER FURTHER ACTIVE DUTY, AGAIN ON DECEMBER 21, 1949.

AS POINTED OUT IN YOUR LETTER, THE GOVERNMENT ON JULY 12, 1960, FILED AN ADMISSION OF LIABILITY IN THE WHELAN CASE, WHICH READS AS FOLLOWS:

IN VIEW OF THE COURT'S REPEATED INTERPRETATION OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, 367, AS AMENDED, 37 U.S.C. 115, IN RELATION TO RIGHTS ACCRUING TO CLAIMANTS OF A NATURE SIMILAR TO THOSE CLAIMED BY THE INSTANT PLAINTIFF, DEFENDANT CONCEDES THAT PLAINTIFF IS ENTITLED TO RECOVER ADDITIONAL RETIRED PAY EFFECTIVE FROM JULY 1, 1953, COMPUTED ON THE BASIS OF 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT ON JUNE 30, 1953. SEPTEMBER 9, 1960, THE COURT OF CLAIMS ENTERED JUDGMENT IN FAVOR OF THE PLAINTIFF COVERING THE PERIOD FROM JULY 1, 1953, TO JULY 12, 1960, INCLUSIVE, AND ON SEPTEMBER 21, 1960, THE DEPARTMENT OF JUSTICE ADVISED THIS OFFICE THAT " THE JUDGMENT AGAINST THE GOVERNMENT IN THE AMOUNT OF $9,042.47 RENDERED BY THE COURT OF CLAIMS ON SEPTEMBER 9, 1960, UNDER DEFENDANT'S ADMISSION OF LIABILITY, HAS NOW BECOME FINAL SINCE THIS DEPARTMENT WILL TAKE NO FURTHER ACTION WITH RESPECT THERETO.' THE AMOUNT DUE UNDER THE JUDGMENT WAS CERTIFIED FOR PAYMENT IN GENERAL ACCOUNTING OFFICE CERTIFICATE OF SETTLEMENT DATED SEPTEMBER 28, 1960.

SINCE THE JUDGMENT IN THIS CASE RESTS ENTIRELY ON DEFENDANT'S ADMISSION OF LIABILITY, AS DISTINGUISHED FROM A JUDICIAL DETERMINATION REACHED BY THE COURT UPON CONSIDERATION OF THE LAW, THE FACTS AND THE MERITS OF THE CASE, YOU REQUEST TO BE ADVISED WHETHER PAYMENT IS AUTHORIZED TO COMMANDER WHELAN OF INCREASED RETIRED PAY EFFECTIVE FROM JULY 13, 1960, COMPUTED AT THE RATE OF 75 PERCENTUM OF HIS ACTIVE DUTY PAY ON JUNE 30, 1953, THAT IS, ON THE SAME BASIS AS THAT PAID TO HIM FOR THE PERIOD JULY 1, 1953, TO JULY 12, 1960, INCLUSIVE, UNDER THE TERMS OF DEFENDANT'S ADMISSION OF LIABILITY AND THE JUDGMENT DATED SEPTEMBER 9, 1960.

THE JUDGMENT OF SEPTEMBER 9, 1960, HAS BECOME FINAL, AND, NOTWITHSTANDING THAT IT RESTS SOLELY ON DEFENDANT'S ADMISSION OF LIABILITY, HAS RENDERED THE MATTER RES JUDICATA WITH RESPECT TO THE PERIOD ACTUALLY COVERED BY THE JUDGMENT, THAT IS, THE PERIOD JULY 1, 1953, TO JULY 12, 1960, INCLUSIVE.

IN ADDITION TO THE ADMISSION OF LIABILITY FILED IN THIS CASE, THE DEPARTMENT OF JUSTICE HAS TAKEN SIMILAR ACTION IN TWO OTHER LIKE CASES. IN THE VESTAL CASE, ABOVE REFERRED TO, DEFENDANT SUBMITTED NO OPPOSITION IN RESPONSE ON MAY 11, 1960, TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ( VESTAL V. UNITED STATES, CT. CL. NO. 494-59) AND ON MAY 9, 1960, SIMILAR ACTION WAS TAKEN IN THE HARANT CASE. ( HARANT V. UNITED STATES, CT. CL. NO. 375-59). ALL THREE CASES ( WHELAN, VESTAL AND HARANT) PRESENT THE SAME FACTUAL SITUATION ("RE-RETIREMENT" SUBSEQUENT TO SEPTEMBER 30, 1949), AND THUS RAISE THE SAME "RE RETIREMENT" ISSUE WITH RESPECT TO THE PROVISIONS OF PARAGRAPH 4, SECTION 15, PAY READJUSTMENT ACT OF 1942. UNDER THE CIRCUMSTANCES, WE FIND NO BASIS FOR FURTHER LITIGATION OF THE QUESTION PRESENTED IN COMMANDER WHELAN'S PETITION AS TO A PERIOD FOLLOWING THAT COVERED BY THE JUDGMENT AND ACCORDINGLY, HIS RETIRED PAY ACCOUNT MAY BE ADJUSTED EFFECTIVE FROM JULY 13, 1960, ON THE SAME BASIS AS THAT AUTHORIZED IN THE JUDGMENT OF SEPTEMBER 9, 1960 ( COURT OF CLAIMS NO. 469- 57), WITH RESPECT TO THE PERIOD JULY 1, 1953, TO JULY 12, 1960, INCLUSIVE.