B-63549, B-129993, JUL. 1, 1959

B-63549, B-129993, JUL. 1, 1959

TO MR. FRANZ O. WILLENBUCHER:

REFERENCE IS MADE TO YOUR LETTERS OF MAY 20 AND MAY 21, 1959, RESPECTIVELY, ON BEHALF OF COMMANDER ALBERT G. BARRY, JR., AND REAR ADMIRAL JOHN D. SMALL, REQUESTING RECONSIDERATION OF OUR ACTION DISALLOWING THEIR CLAIMS FOR INCREASED RETIRED PAY BY REASON OF INCLUSION OF SERVICE AS MIDSHIPMEN IN THE NAVAL ACADEMY UNDER APPOINTMENTS MADE PRIOR TO MARCH 4, 1913.

BOTH RETIRED OFFICERS ARE PLAINTIFFS IN A PETITION FILED MARCH 9, 1959 IN THE COURT OF CLAIMS, SEEKING JUDGMENT IN THE MATTER. SUBSEQUENTLY, ON BEHALF OF YOUR CLAIMANTS, YOU HAVE FILED WITH THE ATTORNEY GENERAL OF THE UNITED STATES, A MOTION TO DISMISS THEIR CLAIMS WITH THE COURT OF CLAIMS, TO BE HELD IN ESCROW PENDING THE SATISFACTORY SETTLEMENT OF THE MATTER BY THIS OFFICE.

IN YOUR LETTERS YOU STATE THAT IT WAS CONCLUDED IN B-138512, DATED MARCH 11, 1959 (38 COMP. GEN. 605), THAT THIS OFFICE WILL FOLLOW THE HOLDING OF THE COURT OF CLAIMS IN THE BROWNELL (BROWNELL V. UNITED STATES, 140 C.CLS. 427) AND THE FOSTER (FOSTER V. UNITED STATES, 140 C.CLS. 427) CASES AND WILL INCLUDE MIDSHIPMAN SERVICE UNDER APPOINTMENTS MADE PRIOR TO MARCH 4, 1913, IN COMPUTING RETIRED PAY OF OFFICERS WHO WERE ON ACTIVE DUTY ON JUNE 30, 1922, BUT WHO SUBSEQUENTLY DID NOT HAVE CONTINUOUS ACTIVE DUTY. SINCE YOU INDICATE BOTH OFFICERS IN THIS CASE FULFILLED THIS REQUIREMENT, YOU CONTEND THAT THE BASIC REASON FOR CONSIDERING THEIR CLAIMS RES ADJUDICATA, IS NO LONGER PRESENT AND THAT ALL THAT IS NEEDED NOW IS A MERE MATHEMATICAL COMPUTATION INVOLVING A MINISTERIAL ACT.

COMMANDER BARRY WAS THE PLAINTIFF IN THE CASE OF BARRY V. UNITED STATES, 123 C.CLS. 530, IN WHICH THE COURT DENIED HIS CLAIM FOR ADDITIONAL RETIRED PAY FROM FEBRUARY 1, 1947, COMPUTED AT 75 PERCENT OF HIS ACTIVE DUTY PAY AT DATE OF RETIREMENT. ADMIRAL SMALL WAS ONE OF THE PLAINTIFFS IN BROYDERICK, ET AL. V. UNITED STATES, 140 C.CLS. 427, AND HIS CLAIM FOR INCREASED RETIRED PAY EFFECTIVE OCTOBER 1, 1949, BASED ON SECTION 511 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 311, WAS DENIED. THE PERIODS COVERED BY THE PRESENT CLAIM ARE WITHIN THOSE CONSIDERED IN THE COURT OF CLAIMS CASES AND THE PLAINTIFFS COULD HAVE INCLUDED IN THEIR PETITIONS, CLAIMS FOR THE INCREASED RETIRED PAY ON THE BASIS THEY NOW CLAIM THEY ARE ENTITLED, INASMUCH AS SUCH RIGHT HAD EXISTED FROM THE DATE OF THEIR RETIREMENT. THE JUDGMENTS AS TO THEIR RIGHTS TO ADDITIONAL RETIRED PAY FOR THE PERIODS COVERED BY COURT OF CLAIMS WERE DETERMINATIVE NOT ONLY AS TO THE MATTERS LITIGATED BUT ALSO AS TO ALL RELEVANT ISSUES WHICH COULD HAVE BEEN RAISED BUT WERE NOT LITIGATED IN THE SUIT. HEISER V. WOODRUFF, ET AL., 327 U.S. 726; STOCKBRIDGE TRIBE OF INDIANS V. UNITED STATES, 63 C.CLS. 268, 269; INTERNATIONAL MARINE TURBINE CO. V. UNITED STATES, 74 C.CLS. 132; ELECTRIC BOAT COMPANY V. UNITED STATES, 81 C.CLS. 361; AND MCSHAIN V. UNITED STATES, 87 C.CLS. 601. SEE ALSO THE CASE OF FRED A. GATTUS V. UNITED STATES, C.CLS. 540-58, DISMISSED MAY 13, 1959 BY THE COURT ON THE GROUND THAT THE CLAIM WAS BARRED BY THE DOCTRINE OF RES JUDICATA. WE HAVE ALSO HELD THAT SUCH DETERMINATIONS INCLUDE 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 HERE INVOLVED WERE AGAIN CONSIDERED BY THE COURTS. SEE 36 COMP. GEN. 489; ID. 501.

FOR THE ABOVE-MENTIONED REASONS, NO ADDITIONAL PAYMENT TO EITHER CLAIMANT WOULD BE WARRANTED AND THE DISALLOWANCES OF SEPTEMBER 18, 1958, IN THE CASE OF COMMANDER BARRY, AND OCTOBER 3, 1958, IN THE CASE OF ADMIRAL SMALL, ARE SUSTAINED.