B-120639, JUN. 30, 1960

B-120639, JUN. 30, 1960

TO KING AND KING, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF MAY 12, 1960, SUBMITTING AN ALTERNATE CLAIM ON BEHALF OF UDOR LABOSSIERE FOR THE REFUND OF ENLISTED RETIRED PAY FOR THE PERIOD JUNE 1, 1950, THROUGH JULY 28, 1950, PURSUANT TO THE PROVISIONS OF THE ACT OF MAY 27, 1954, 68 STAT. 140. YOU STATE THAT THE SUBMISSION OF THIS CLAIM IS NOT TO BE CONSTRUED AS A WAIVER OF THE POSITION ASSERTED IN THE CLAIMANT'S ORIGINAL CLAIM; THAT THE SETTLEMENT OF JANUARY 6, 1958 (1959), BY THIS OFFICE HAS NOT BEEN ACCEPTED PENDING THE OUTCOME OF ADDITIONAL TEST CASES NOW PENDING BEFORE THE COURT OF LAIMS; AND THAT THE CHECK ISSUED IN PAYMENT OF SUCH SETTLEMENT HAS NOT BEEN NEGOTIATED.

THE RECORDS SHOWS THAT UDOR LABOSSIERE WAS ONE OF THE PLAINTIFFS IN THE CLASS ACTION OF AGUINALDO, ET AL. V. UNITED STATES, C.CLS. NO. 49726 (36) AND JUDGMENT COVERING THE PERIOD DECEMBER 10, 1945, TO SEPTEMBER 30, 1949, WAS ENTERED IN HIS FAVOR ON STIPULATION OF THE PARTIES ON APRIL 7, 1953. ON JUNE 29, 1954, MR. LABOSSIERE FILED A PETITION WITH THE COURT OF CLAIMS AS ONE OF THE PLAINTIFFS IN THE CASE OF AHANA, ET AL. V. UNITED STATES, C.CLS. 268-54. BY LETTER OF AUGUST 8, 1958, A CLAIM WAS PRESENTED TO THIS OFFICE FOR RETIRED PAY AS COMMISSIONED WARRANT OFFICER WITHHELD PURSUANT TO SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 406, FOR THE PERIOD COMMENCING JUNE 1, 1950, WHILE MR. LABOSSIERE WAS EMPLOYED BY THE FEDERAL GOVERNMENT IN A CIVILIAN CAPACITY. THE LETTER ADVISED THAT A MOTION TO DISMISS THE COURT ACTION WAS DELIVERED TO THE DEPARTMENT OF JUSTICE TO BE HELD IN ESCROW PENDING SATISFACTORY SETTLEMENT OF THAT CLAIM. BY SETTLEMENT DATED JANUARY 6, 1958 (1959), ADDITIONAL RETIRED PAY FOR THE PERIOD COMMENCING APRIL 8, 1953, WAS ALLOWED, BASED ON HIS CHIEF WARRANT OFFICER GRADE. CLAIMANT WAS ADVISED THAT UNDER 28 U.S.C. 2517, PAYMENT OF THE JUDGMENT IN THE PREVIOUS COURT ACTION ENTERED ON APRIL 7, 1953, CONSTITUTED A FULL DISCHARGE TO THE UNITED STATES OF ALL CLAIMS AND DEMANDS ARISING OUT OF THE MATTERS INVOLVED, AND THAT THERE WAS NO AUTHORITY FOR ALLOWANCE OF THE CLAIM FOR ANY PERIOD PRIOR TO APRIL 8, 1953.

A FIRST AMENDMENT TO PETITION NO. 268-54, FILED ON MAY 20, 1960, CLAIM IN THE ALTERNATIVE ENTITLEMENT TO ENLISTED RETIRED PAY FROM NOVEMBER 1, 1946, OR FROM DATE OF THE PLAINTIFF'S ADVANCEMENT ON THE RETIRED LIST, WHICHEVER DATE IS LATER, TO THE EFFECTIVE DATE OF HIS REVERSION TO AN ENLISTED STATUS ON JULY 28, 1950, UNDER THE PROVISIONS OF THE ACT OF MAY 27, 1954, 68 STAT. 140.

IN A RECENT DECISION IN THE CASE OF AMSDEN, ET AL. V. UNITED STATES (JAMES B. MCCARTHY, PLAINTIFF NO. 17), C.CLS. NO. 134-54, DATED JUNE 8, 1960, THE COURT HELD THAT THE DOCTRINE OF RES JUDICATA AND 28 U.S.C. 2517, BARRED A PLAINTIFF'S RECOVERY IN A SECOND ACTION ONLY FOR THE PERIOD ACTUALLY COVERED BY THE JUDGMENT ENTERED ON STIPULATION BETWEEN PARTIES IN THE FIRST CASE. IF NOT MODIFIED, THAT DECISION WOULD FURNISH A BASIS FOR THE PAYMENT OF THE ADDITIONAL AMOUNT FOUND DUE AS RETIRED PAY DURING THE PERIOD JUNE 1, 1950, TO APRIL 7, 1953, BASED ON MR. LABOSSIERE'S CHIEF WARRANT OFFICER GRADE, PROVIDED THE MOTION TO DISMISS THE ACTION UNDER PETITION NO. 268-54, MENTIONED ABOVE, IS STILL ON FILE WITH THE DEPARTMENT OF JUSTICE. HOWEVER, THE JUDGMENT IN MCCARTHY'S FAVOR HAS NOT YET BECOME FINAL AND IT IS NOT KNOWN WHAT FURTHER ACTION THE DEPARTMENT OF JUSTICE WILL TAKE IN THAT CASE. UPON THE RECEIPT OF INFORMATION AS TO THIS MATTER, YOU WILL BE FURTHER ADVISED.