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twenty years of satisfactory Federal service * * * and was in all respects qualified to receive retirement pay commencing that date and to be placed on the Army of the United States retired list * * * under the provisions of Title III, act of June 29, 1948, 62 Stat. 1081." It was also alleged that "Each plaintiff, upon his application, has been placed *** on the Army of the United States Retired List *** with entitlement to retirement pay under the provisions of Title III * * * and is now on such Retired List with entitlement to retirement pay.”

These allegations were not then known to be erroneous and consequently they were admitted and not controverted by the Government in the reply made to the petition. This is made clear by defendant's motion for summary judgment filed July 25, 1958, which opened with the following statement :

Defendant moves the Court for summary judgment as to plaintiff Nathan Reed Warthen (5), on the ground that there is no genuine issue of material fact in this case and that defendant is entitled as a matter of law to judgment dismissing plaintiff's petition.

In support of its motion, defendant relies upon the pleadings and the brief and exhibit submitted herewith. [Italics supplied.]

In its opinion rendered January 14, 1959, the Court of Claims stated that “The plaintiff's length of service was sufficient in 1943 to satisfy the longevity requirement.” Adhering to the rule of the Sarles decision of March 5, 1958, 141 C. Cls. 709, the court held that the matter came within the scope of the Tanner case, 129 C. Cls. 792, and concluded that the payment of Title III retired pay to Warthen was exempt from the restrictions of section 212 of the Economy Act, 5 U.S.C. 59a. Defendant's motion for summary judgment was denied and the court, granting the plaintiff's similar motion, directed entry of judgment "for the plaintiff, Nathan R. Warthen (5), the amount of the judgment to be determined in further proceedings pursuant to Rule 38(c).”

This Office subsequently acting in compliance with plaintiff's Motion for Call allowed by the court on January 19, 1959, for a computation of the amount due under the judgment rendered on January 14, 1959, discovered the deficiency in Warthen's military service. Thereafter, in reports dated May 1, 1959, showing the amount of Title III retired pay which otherwise would have accrued to Warthen during the period May 1, 1952, to August 3, 1955, inclusive, the Court of Claims and the Department of Justice were advised that the plaintiff did not meet the minimum service requirements prescribed in the 1948 law. The Department of the Army also was advised concerning this same matter and the record indicates that Warthen's name was removed from the Army of the United States retired list by orders dated April 23, 1959.

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On June 19, 1959, the Government filed a motion for a new trial and for amendment of judgment, including judgment on defendant's counterclaim against the plaintiff for Title III retired pay erroneously paid to him during the period August 4, 1955, to March 31, 1959, inclusive, stating that the plaintiff had insufficient service to qualify for such retired pay. The Department of Justice advised this Office in letter dated December 15, 1959, in pertinent part as follows:

On October 7, 1959, the court overruled our motion for a new trial and amendment of the judgment. The denial of the motion was without opinion and, therefore, we do not know on what ground or grounds the court overruled it. In any event, there has not been a reversal of the Waterman case [Waterbury v. United States, 121 C. Cls. 691], on the basis of which this plaintiff's retirement orders have been revoked. * * * The amount of the judgment was thereupon certified for payment by our Claims Division in settlement dated December 22, 1959.

Since Warthen does not have the minimum number of years of satisfactory Federal service to qualify for the retired pay in question, his right to Title III retired pay for any period not covered by the judgment of January 14, 1959, must be based solely on the rule of res judicata or estoppel by judgment. That rule, in general, requires that a matter once litigated should not again be drawn into question between the same parties. In the case of Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 598, the Supreme Court of the United States stated that:

* * * matters which were actually litigated and determined in the first proceeding oannot later be relitigated. Once a party has fought out a matter in litigation with the other party, he cannot later renew that duel. In this sense, res judicata is usually and more accurately referred to as estoppel by judgment, or collateral estoppel. [Italics supplied.] In United States v. Moser, 266 U.S. 236, 242, it was stated that:

* * * a fact, question or right distinctly adjudged in the original action cannot be disputed in a subsequent action, even though the determination was reached upon an erroneous view or 'by an erroneous application of the law. [Italics supplied.]

When the Government filed its motion for a new trial and amendment of judgment on June 19, 1959, an issue of fact was presented for the court's consideration as to whether the plaintiff had sufficient service to qualify for the retired pay claimed. There has been no affirmative judicial ruling on this disputed point.

It is not known why such motion was overruled. Possibly such action was taken because the matter was not brought to the court's attention on a motion for rehearing or new trial within 30 days after the court's decision of January 14, 1959, under Rule 53(a), (c) of the Court of Claims. In support of its motion, the Government cited 28 U.S.C. 2515, which permits the granting of a new trial within two years after final disposition of a suit, upon a showing that fraud, wrong or injustice has been done to the United States. Also cited was Rule 54(b) which permits relief within one year from a final judgment,

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for reasons of mistake, inadvertence, excusable neglect or newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 53(a). It may be that the court felt that no excusable neglect was involved, because of a belief that the actual facts could have been discovered by due diligence prior to February 14, 1959, and, hence, that no wrong or injustice was done the Government under the court's decision.

It is not known whether the Court of Claims would regard this matter as being governed by the rule of res judicata if it should again become the subject of litigation for any period not covered by the judgment in Warthen's favor, particularly since the court stated in one of its relatively recent opinions (Amsden, et al. v. United States, C. Cls. No. 134–54, July 15, 1959) that “we are not willing to permit a strict application of the doctrine of res judicata to prevent us from reaching a conclusion which is consonant with our sense of justice.”

In view of all the circumstances, and since a dispute between the parties as to a basic fact has not yet been settled by the Court of Claims, we have a substantial doubt that such court would hold that the matter of Mr. Warthen's entitlement to retired pay for current periods is concluded by the judgment in his favor for an earlier period which was entered on the basis of an erroneous assumption and admission regarding the length and nature of his military service. Having such doubt we must refuse to sanction current payments of retired pay to him, or approve any payments of retired pay to him for any period not covered by the judgment in his favor, unless and until his right to such payments has been resolved by the courts. See Longwill v. United States, 17 C. Cls. 288, and Charles v. United States, 19 C. Cls. 316.

Accordingly, payment on the voucher received with your letter is not proper and such voucher, with related papers, will be retained here.

[B-142493]

Military Personnel—Transfer to Inactive Status Until Becoming 60 Years of Age-Service Requirements

For members of the regular components of the Armed Forces who have 20 years of satisfactory Federal service as defined in 10 U.S.C. 1332 and would otherwise be qualified for retirement for physical disability except that their disability was less than 30 percent, to be eligible under 10 U.S.C. 1209 for transfer to the inactive status list and to receive retired pay computed under Chapter 71 of Title 10 of the U.S. Code upon becoming 60 years of age, such members must have met all the requirements, except age, imposed under the voluntary retirement provisions in Chapter 67, including completion of 20 years of satisfactory service as defined in 10 U.S.C. 1332, the last 8 years of which were in a reserve component, as required under 10 U.S.C. 1331; however, Regular Army service which follows completion of all of the service requirements in 10 U.S.C. 1331 would not deprive a Regular member of eligibility for Chapter 71 retirement benefits.

To the Secretary of Defense, May 31, 1960:

Reference is made to letter of April 4, 1960, from the Assistant Secretary of Defense (Comptroller), requesting decision as to whether, under section 1209, Title 10, U.S. Code, a regular member of the Armed Forces is subject to the provisions of section 1332, Title 10 of the Code as well as section 1331. A discussion pertaining to the question is contained in Committee Action No. 263 of the Department of Defense Military Pay and Allowance Committee.

Section 1209, Title 10, U.S. Code, provides as follows: Any member of the armed forces who has at least 20 years of service computed under section 1332 of this title, and who would be qualified for retirement under this chapter but for the fact that his disability is less than 30 percent under the standard schedule of rating disabilities in use by the Veterans' Administration at the time of the determination, may elect, instead of being separated under this chapter, to be transferred to the inactive status list under section 1335 of this title and, if otherwise eligible, to receive retired pay under chapter 71 of this title upon becoming 60 years of age. * * *

Section 1331(a), Title 10, provides :

(a) Except as provided in subsection (c), a person is entitled, upon application, to retired pay computed under section 1401 of this title if

(1) he is at least 60 years of age;

(2) he has performed at least 20 years of service computed under section 1332 of this title ;

(3) he performed the last eight years of qualifying service while a member of any category named in section 1332(a) (1) of this title, but not while a member of a regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve; and

(4) he is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve.

The source statute for section 1209, Title 10, is section 402(g) of the Career Compensation Act of 1949, 63 Stat. 820, which provided, in effect, that

any member of the Army of the United States, Navy, Air Force of the United States, Marine Corps or the Coast Guard, and all regular and reserve components thereof who had completed at least 20 years' satisfactory Federal service in the uniformed services as defined in sections 302 and 306 of Public Law 810, Army and Air Force Vitalization and Retirement Equalization Act of 1948, 62 Stat. 1087, 1089, presently codified in 10 U.S.C. 1331 and 1332, and who otherwise was qualified to be retired for physical disability except that his disability was less than 30 percent, might elect to be transferred to the inactive status list of his service, pursuant to section 308 of Public Law 810, 62 Stat. 1090, presently codified in 10 U.S.C. 1335, and upon reaching the age of 60, be granted retired pay, if eligible in all other respects to be granted retired pay, as provided in Title III of Public Law 810.

The discussion contained in Committee Action No. 263 points out that to be qualified for retirement pay under chapter 67, Title 10, a member must have 20 years of certain specified service (10 U.S.C. 1332), the last 8 years of which were in a reserve component. 10 U.S.C. 1331. Since as a practical matter, no member with 20 years of such service, the last 8 years of which were in a reserve component, would be able under recent service administrative regulations to become a member of a regular component, the committee action suggests that to require compliance with 10 U.S.C. 1331 in the application of section 1209 would render such section of little or no consequence where regular members are concerned.

Title IV of the Career Compensation Act provided a comprehensive plan of separation from the service for physical disability for members of the uniformed services. If otherwise qualified, members whose disability was 30 percent or more were required to be retired with retired pay. Members whose disability was less than 30 percent were required to be separated with severance pay. Recognizing that members of the regular components with 20 or more years of active service, as defined in section 412 of that title, were eligible for voluntary retirement with pay under other laws relating to retirement of members of the regular components, Congress provided in section 402(f) of the act that such members who were otherwise eligible for retirement for physical disability except that their disability was less than 30 percent, should nevertheless be retired with physical disability retirement pay. Apparently recognizing further that certain members of the uniformed services in active service as either Regulars or Reservists who would not have 20 years of active service for voluntary retirement purposes might have 20 years of satisfactory Federal service under the provisions of Title III of Public Law 810, Congress provided in section 402(g) that a member, including a member of a regular component, who has at least 20 years of satisfactory Federal service as defined in sections 302 and 306 of Public Law 810 may elect, in lieu of separation with severance pay, to be transferred to the inactive status list and be granted retirement pay upon becoming 60 years of age “if eligible in all other respects to be granted retired pay as provided in title III of that act [Public Law 810].” It seems clear, insofar as Regular members are concerned, that section 402(g) was not intended to create new and additional benefits for members of the regular components but had reference only to Regular members who had qualified in all respects, except age, for retirement pay under Public Law 810. The last 8 years of such service necessarily must have been performed in a reserve component prior to becoming a member of a regular component. Unless so qualified the section afforded no authority for the transfer of a regular member to the inactive status list for the purpose of subsequent payment of retirement pay under the provisions of Title III. See page 27, Senate Report No. 733, 81st Congress, on H.R. 5008, which became the Career Compensation Act of 1949 and the discussion

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