Gomes

180 Ct. Cl. 1300, 1967 U.S. Ct. Cl. LEXIS 120, 1967 WL 1557

• Court: United States Court of Claims
• Decided: June 13, 1967
• Docket: No. 107-65
• Status: Published

Opinion

Military fay; retired fay (disability) ; Title IV of Career Comfensation Act; enlisted men — heretofore retired.— Plaintiffs former enlisted men of the United States Navy, after being placed on the retired list of the Regular Navy for reasons other than service incurred disabilities, were recalled to active duty and incurred physical disabilities in the line of duty during World War II. The Navy returned plaintiffs to the retired list but refused to pay them disability retired pay computed in accordance with Title IY of the Career Compensation Act, 63 'Stat. 818~819, on the ground that their entitlement to retired pay was controlled by the nature of their original retirement (nondisability). Plaintiffs moved for summary judgment to which defendant submitted no opposition insofar as plaintiffs sought recovery for the period beginning six years prior to the date of the filing of the petition, i.e., from April 1, 1959, and on August 12, 1966 and September 16,1966, the court ordered that plaintiff’s motion for summary judgment be granted and the amounts of recovery be determined in further proceedings under Pule 47 (c). On June 13,1967, on the basis of a memorandum report of the trial commissioner, the orders of the court and the computations accepted by the parties, judgment was entered in favor of the plaintiffs as follows:

(1) Lola Figueriedo Gomes, Widow of Antone Elario Period, Amount Gomes, deceased_ 4/1/59- 9/16/62 $945.71

(2) Earl Clifton Hawley_ 4/1/59-11/30/66 2,389.20

(3) Floyd Parks_ 4/1/59-11/30/66 1,702.65

(4) John Silas Upton_ 4/1/59-11/30/66 1, 702. 65

Judgment was entered without prejudice to plaintiffs’ respective claims for increased disability retired pay accruing after November 30,1966.