Payson

Military fay ; active duty fay; discharge. — Plaintiff, a former Commander in the Regular Navy discharged in 1958, sues to recover active duty pay and allowances from July 1, 1958 to July 21, 1958, when his discharge became effective, and also active duty pay and allowances to the date of judgment, less any severance pay received, claiming that his discharge was arbitrary and invalid. Defendant moved for summary judgment dismissing the petition on the ground that plaintiff’s claim was barred under the doctrine of collateral estoppel, the issues involved in the present suit having been decided adversely to plaintiff in his prior action in the District Court. Payson v. Franke, 282 F. 2d 851 (1960), cert. denied, Robinson, et al. v. Franke, 365 U.S. 815 (1961). The case came before the court on defendant’s motion and upon consideration thereof, together with plaintiff’s opposition thereto and without oral argument, the court on June 8, 1965 ordered that defendant’s motion be granted and the petition dismissed except as to plaintiff’s claim for pay between July 1, 1958 and the date of his discharge and that plaintiff might have leave to file a motion for summary judgment to recover pay between July 1,1958 and the date of his discharge. On November 12, 1965, the court denied plaintiff’s motion for rehearing under Rule 68. Plaintiff’s petition for writ of certiorari was denied March 28, 1966, 383 U.S. 957.