B-95020, OCT. 30, 1961

B-95020, OCT. 30, 1961

TO KING AND KING, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 6, 1961, REQUESTING FURTHER CONSIDERATION OF THE CLAIM OF MRS. ELSIE G. FITZGERALD FOR INCREASED DISABILITY RETIRED PAY UNDER THE PROVISIONS OF SECTIONS 202, 402, AND 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, BELIEVED TO BE DUE HER LATE HUSBAND, WILLIAM FRANCIS FITZGERALD, USN, RETIRED, FOR THE PERIOD JULY 1, 1952, THROUGH JANUARY 14, 1957, THE DATE OF HIS DEATH.

IT APPEARS THAT LIEUTENANT FITZGERALD ENLISTED IN THE NAVAL SERVICE ON FEBRUARY 25, 1915, AND SERVED ON CONTINUOUS ACTIVE DUTY UNTIL MARCH 2, 1931, AT WHICH TIME HE WAS RELEASED FROM ACTIVE DUTY AND TRANSFERRED TO THE FLEET NAVAL RESERVE, CLASS F-4-C. ON SEPTEMBER 19, 1939, HE WAS RECALLED TO ACTIVE DUTY AND SERVED UNTIL JULY 31, 1941. ON AUGUST 1, 1941, HE WAS PLACED ON THE RETIRED LIST OF THE U.S. NAVY PURSUANT TO THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938 FOR PHYSICAL DISABILITY. MARCH 9, 1942, HE WAS RECALLED TO ACTIVE DUTY AND SERVED CONTINUOUSLY UNTIL MARCH 18, 1946, WHEN HE WAS RELEASED FROM ACTIVE DUTY. IT FURTHER APPEARS THAT LIEUTENANT FITZGERALD WAS PLAINTIFF NO. 28 IN THE CASE OF EBINGER, ET AL. V. UNITED STATES, CT.CL.NO. 49615, FILED APRIL 27, 1950, WHEREIN PLAINTIFFS SOUGHT INCREASED RETIRED OR RETAINER PAY FOR THE PERIOD FROM DATE OF RELEASE TO INACTIVE STATUS TO DATE OF JUDGMENT. ON FEBRUARY 3, 1953, THE COURT ENTERED JUDGMENT IN FAVOR OF PLAINTIFF FITZGERALD BASED ON A STIPULATION BETWEEN THE PARTIES TO THAT ACTION. LIEUTENANT FITZGERALD WAS PAID $2,763.89 PURSUANT TO THAT JUDGMENT REPRESENTING ADJUSTED RETIRED PAY AS COMPUTED BY THE DEPARTMENT OF THE NAVY FOR THE PERIOD MARCH 18, 1946, THROUGH JUNE 30, 1952.

THE PRESENT CLAIM FOR BENEFITS UNDER THE CAREER COMPENSATION ACT OF 1949 WAS DISALLOWED BY THE GENERAL ACCOUNTING OFFICE CLAIMS DIVISION BY SETTLEMENT DATED APRIL 14, 1960, ON THE BASIS THAT THE JUDGMENT OBTAINED IN THE COURT ACTION SERVED AS A BAR TO THE PRESENT CLAIM UNDER THE PRINCIPLE OF RES JUDICATA AND THE PROVISION OF 28 U.S.C. 2517.

IN YOUR LETTER OF JANUARY 6, 1961, YOU INVITE ATTENTION TO THE DECISION OF THE COURT OF CLAIMS IN CLARK, ET AL. V. UNITED STATES, CT.CL.NO. 45-45, DECIDED JUNE 8, 1960, AS AMENDED NOVEMBER 2, 1960, AND URGE THAT CLAIMANT IS ENTITLED TO RECEIVE INCREASED DISABILITY RETIRED PAY FROM JULY 1, 1952, THE DAY FOLLOWING THE "CUT-OFF DATE" OF THE JUDGMENT OF FEBRUARY 3, 1953, THROUGH JANUARY 14, 1957.

IT APPEARS THAT LIEUTENANT FITZGERALD WAS PLACED ON THE RETIRED LIST ON AUGUST 1, 1941, BY REASON OF A PHYSICAL DISABILITY INCURRED WHILE IN RECEIPT OF ACTIVE DUTY PAY AND THAT THE HIGHEST RANK SATISFACTORILY HELD WAS DETERMINED TO BE LIEUTENANT. OFFICIAL RECORDS FAIL TO SHOW THAT HIS CASE RECEIVED ANY CONSIDERATION UNDER ACTION 411 OF THE CAREER COMPENSATION ACT OF 1949 PRIOR TO 1961. IN LETTER DATED SEPTEMBER 27, 1961, THE BUREAU OF NAVAL PERSONNEL REPORTED THAT:

"* * * LT. FITZGERALD'S CASE WAS REFERRED TO THE SECRETARY OF THE NAVY VIA THE PHYSICAL REVIEW COUNCIL, NAVY DEPARTMENT FOR A DETERMINATION OF SERVICE CONNECTED DISABILITY AND, IF APPROPRIATE, AN ASSIGNMENT OF PERCENTAGE OF DISABILITY PURSUANT TO SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949. THE PHYSICAL REVIEW COUNCIL, AFTER REVIEW OF HIS CASE, RECOMMENDED THE ASSIGNMENT OF A DISABILITY RATING OF 100 PERCENT UNDER VA CODE 7006-7005 IN ACCORDANCE WITH THE AFOREMENTIONED SECTION OF LAW. * * * THE JUDGE ADVOCATE GENERAL, HOWEVER, HAS RETURNED THIS CASE TO THE CHIEF OF NAVAL PERSONNEL FOR APPROPRIATE ACTION INASMUCH AS THE FIVE YEAR PERIOD FOR MAKING AN ELECTION UNDER THE ACT HAS ELAPSED AND THERE IS NO ADMINISTRATIVE AUTHORITY WHICH WOULD NOW PERMIT THIS TO BE DONE.

"LT. FITZGERALD'S RECORDS IN THE BUREAU OF NAVAL PERSONNEL DO NOT DISCLOSE ANY INFORMATION PERTAINING TO A REVIEW OF HIS MEDICAL RECORDS OR ASSIGNMENT OF PERCENTAGE OF DISABILITY PRIOR TO THE ACTION TAKEN BY THE PHYSICAL REVIEW COUNCIL ON 25 AUGUST 1961 AND HE THEREFORE WAS NOT ADVISED OF THE ALTERNATIVE METHODS OF COMPUTING RETIRED PAY PURSUANT TO SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949.'

SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, PROVIDED INSOFAR AS PERTINENT HERE THAT ANY MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES THERETOFORE RETIRED BY REASON OF PHYSICAL DISABILITY AND RECEIVING RETIRED OR RETIREMENT PAY, OR ANY FORMER MEMBER THERETOFORE GRANTED OR ENTITLED TO RECEIVE RETIREMENT PAY FOR PHYSICAL DISABILITY "MAY ELECT WITHIN THE FIVE-YEAR PERIOD FOLLOWING THE EFFECTIVE DATE" OF TITLE IV OF THAT ACT TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS THEREOF OR TO RECEIVE RETIRED OR RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THE ACT. THE FIVE-YEAR PERIOD MENTIONED EXPIRED OCTOBER 1, 1954.

THERE HAS BEEN NO DETERMINATION BY THE SECRETARY OF THE NAVY THAT MR. FITZGERALD WAS FOUND QUALIFIED TO RECEIVE THE RETIRED PAY BENEFITS AFFORDED BY SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949 AND SINCE IT IS CLEAR THAT MR. FITZGERALD DID NOT ELECT TO QUALIFY UNDER THE STATUTE WITHIN THE STATUTORY PERIOD OF FIVE YEARS, THERE IS NO AUTHORITY FOR THE PAYMENT OF HIS WIDOW'S CLAIM.