B-148083, MAR. 7, 1962

B-148083, MAR. 7, 1962

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 24, 1962, REQUESTING RECONSIDERATION SETTLEMENT DATED MAY 19, 1961, DISALLOWING THE CLAIM OF WILLIAM CARTER STACY, UNITED STATES NAVY, RETIRED, FOR THE DIFFERENCE BETWEEN DISABILITY RETIRED PAY (COMPUTED FOR HIS ENLISTED GRADE AS INCREASED BY CREDIT FOR HIS YEARS OF ACTIVE DUTY PLUS HIS INACTIVE DUTY IN THE FLEET RESERVE SUBSEQUENT TO HIS TRANSFER THERETO AND PRIOR TO RECALL TO ACTIVE DUTY) AND THE RETIRED PAY ACTUALLY RECEIVED BY HIM DURING THE PERIOD BEGINNING OCTOBER 1, 1949. THE CLAIM IS BASED ON THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, AND THE HOLDING OF THE COURT OF CLAIMS IN THE CASE OF SELIGA V. UNITED STATES, 137 CT.CL. 710.

THE CLAIM FOR INCREASED RETIRED PAY UNDER THE RULE OF THE SELIGA CASE WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON MARCH 3, 1961. HENCE, THE PERIOD PRECEDING MARCH 3, 1951, IS BARRED UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A. ALSO, THE RECORD DISCLOSES THE WILLIAM CARTER STACY WAS PLAINTIFF NO. 146 IN THE CASE OF ADAMS, ET AL. V. UNITED STATES, CT.CL. 50159, FILED MAY 22, 1951. DECEMBER 1, 1953, JUDGMENT WAS RENDERED IN FAVOR OF STACY AND HENCE THE PERIOD PRECEDING DECEMBER 2, 1953, IS BARRED UNDER THE DOCTRINE OF RES JUDICATA.

THE RECORDS SHOW THAT MR. STACY WAS PLACED ON THE RETIRED LIST EFFECTIVE SEPTEMBER 1, 1943. THE CHIEF OF NAVAL PERSONNEL IN LETTER DATED OCTOBER 16, 1951, ADVISED MR. STACY THAT "A FURTHER REVIEW OF YOUR OFFICIAL RECORDS INDICATES THAT THE PHYSICAL DISABILITY WHICH RESULTED IN YOUR TRANSFER TO THE RETIRED LIST WAS NOT INCURRED WHILE IN RECEIPT OF BASIC PAY. THEREFORE YOU ARE NOT ENTITLED TO THE BENEFITS PRESCRIBED IN SECTION 411, CAREER COMPENSATION ACT OF 1949, AND SUCH PART OF * * * (LETTER DATED AUGUST 28, 1951) * * * AS PERTAINS TO YOUR ENTITLEMENT TO DISABILITY RETIREMENT OR SEVERANCE PAY IS HEREBY CANCELLED.' YOU STATE THAT THE INFORMATION ON WHICH THE DISALLOWANCE OF MAY 19, 1961, WAS BASED DOES NOT AGREE WITH THE DATA FURNISHED YOU BY THE CLAIMANT TO THE EFFECT THAT THE BUREAU OF MEDICINE AND SURGERY RECOMMENDED ON AUGUST 11, 1943, THAT HE BE RETIRED BY REASON OF PHYSICAL DISABILITY. SUCH INFORMATION RELATING TO THE MEMBER'S MEDICAL STATUS DOES NOT ESTABLISH THAT THE CLAIMANT IS ENTITLED TO ANY BENEFITS UNDER THE SELIGA RULE. IN THIS CONNECTION, SEE DECISION OF JANUARY 12, 1962, IN THE CASE OF ERNEST W. GREAVES, PLAINTIFF NO. 14 IN AFLAGUE, ET AL. V. UNITED STATES, CT.CL. 212-56, WHEREIN IT WAS CONCEDED THAT THE DISABILITY RETIREMENT PAY BENEFITS PRESCRIBED IN TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816-825, DO NOT ACCRUE UNLESS THE DISABILITY FOR WHICH PLACED ON THE RETIRED LIST WAS INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY. THIS OFFICE, THEREFORE, FINDS NO BASIS TO CHANGE THE CONCLUSION REACHED IN THE SETTLEMENT OF MAY 19, 1961, AND THAT SETTLEMENT IS SUSTAINED.