Register v. United States
Decision Date | 15 July 1960 |
Docket Number | No. 207-59.,207-59. |
Citation | 150 Ct. Cl. 752,281 F.2d 448 |
Parties | John Wright REGISTER v. UNITED STATES. |
Court | U.S. Claims Court |
Guy Emery, Washington, D. C., for plaintiff; Emery & Wood, Washington, D. C., on the brief.
LeRoy Southmayd, Jr., Washington, D. C., George Cochran Doub, Jr., Asst. Atty. Gen., for defendant; Katherine H. Johnson, Alexandria, Va., on the brief.
This is plaintiff's second suit for active duty pay and retired pay. Our former decision is reported in 128 F.Supp. 750, 131 Ct.Cl. 98.
Insofar as plaintiff seeks the active duty and retired pay of a lieutenant, his claim is plainly barred by the doctrine of res judicata for the period covered by our former judgment. We decided in the former case that plaintiff was entitled to the active duty and retired pay of a lieutenant, junior grade. That was a final judgment on that question and it cannot be litigated again. See 28 U.S. C. § 2517.
It is true that in our former decision we did not consider nor decide the question of plaintiff's right to the retired pay of a lieutenant. However, since plaintiff could and should have raised this question in the former litigation, our judgment there bars him from now making this claim as to the period previously covered by the first suit. E. g. Clark v. United States, Ct.Cl., 281 F.2d 444. Plaintiff, however, is not estopped to raise the question as to the period subsequent to our former judgment, since, as we have stated, the issue was not previously decided. Abarr v. United States, 153 F.Supp. 387, 139 Ct.Cl. 748.
The factual basis for plaintiff's claim may be stated briefly as follows: On July 16, 1945, plaintiff was serving aboard the U. S .S. Bosque as a lieutenant, junior grade. Immediately preceding this date plaintiff had been hospitalized for thrombophlebitis and cellulitis. Upon his return to his ship he was informed that his promotion to lieutenant had been authorized by ALN AV 149-45. However, certain conditions were placed on the authorization as set out in BUPERS CIRLET 222-43 and, accordingly, in order to be promoted, plaintiff had to be physically qualified and had to receive a recommendation from his commanding officer stating that he was "mentally, morally and professionally qualified."
On July 16, plaintiff underwent a physical examination, the results of which showed that he was not physically qualified for promotion. Shortly thereafter, on July 30, 1945, plaintiff's commanding officer wrote the following letter to the Chief of Naval Personnel with reference to plaintiff's promotion:
Later, plaintiff was transferred to the Naval Hospital, Bethesda, Maryland, and he was so stationed at the time of the issuance, on January 16, 1946, of ALNAV 28-46. This regulation stated:
On February 7, 1946, plaintiff, claiming that he came within this regulation, executed a form acknowledging receipt of notice of his temporary appointment to the rank of lieutenant. The commanding officer of the Naval Hospital forwarded the plaintiff's acceptance of the promotion with the following endorsement:
"This officer is considered to be mentally, morally and professionally qualified for this appointment."
On April 25, 1946, the Navy Bureau of Personnel wrote the plaintiff acknowledging receipt of notice of the plaintiff's acceptance of his supposed promotion, but stated that his promotion had not become effective. The letter said:
Thereafter, plaintiff was released to inactive duty in the rank of lieutenant, junior grade. In 1956 he applied to the Board for Correction of Naval Records to have his records changed to show his promotion to the grade of lieutenant. His application was denied. The Board found, in particular:
Plaintiff did not come within the terms of ALNAV 149-45, because he was in the hospital when it was issued, and, after release from the hospital, he was unable to pass the physical examination. He did not come within the terms of ALNAV 28-46 because it promoted those officers whose promotion had been withheld only "by reason of physical disability or disqualification." Such officers were promoted regardless of the officer's physical condition. It was not, of itself, however, a promotion, but merely waived the...
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Boruski v. United States Government, 231
...of August 28, 1951, § 2517(b) would not operate to bar Boruski's claim for pay subsequent to that date. E. g., Register v. United States, 281 F.2d 448, 449, 150 Ct.Cl. 752 (1960). But the Court of Claims here determined "that the honorable discharge, insofar as this court is concerned, in l......
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Register v. United States
...consideration thereof, It is ordered this first day of December, 1960, that plaintiff's motion for new trial be and the same is denied, 281 F.2d 448. Judge MADDEN, joined by Judge LARAMORE, dissents for the reasons stated in his attached MADDEN, Judge. Judge LARAMORE and I would grant the p......