A-10721, OCTOBER 15, 1925, 5 COMP. GEN. 258

A-10721: Oct 15, 1925

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PAYMENT IS NOT AUTHORIZED OF THE $100 GRATUITY UNDER SECTION 1407. BY WHICH WAS DISALLOWED HIS CLAIM FOR A GRATUITY OF $100 ON ACCOUNT OF A MEDAL OF HONOR AWARDED DECEMBER 4. THE MEDAL OF HONOR IS AWARDED FOR GALLANT CONDUCT UPON THE OCCASION OF THE DISASTROUS FIRE OF ACCIDENTALLY IGNITED POWDER CHARGES WHICH OCCURRED IN THE FORWARD TURRET OF THE U.S.S. WAS AMONG THE FIRST TO ENTER THE TURRET IN ORDER TO ASSIST IN BRINGING OUT THE INJURED. 3. SEEMS TO HAVE BEEN ISSUED UNDER THE AUTHORITY OF SECTION 1407. PROVIDES: THAT ANY ENLISTED MAN OF THE NAVY OR MARINE CORPS WHO SHALL HAVE DISTINGUISHED HIMSELF IN BATTLE OR DISPLAYED EXTRAORDINARY HEROISM IN THE LINE OF HIS PROFESSION SHALL. BECAUSE OF WHICH THE PRIOR LAWS ON THE SUBJECT OF MEDALS OF HONOR IN THE NAVY AND MARINE CORPS WERE DECIDED TO HAVE BEEN REPEALED. 26 COMP.

A-10721, OCTOBER 15, 1925, 5 COMP. GEN. 258

NAVY PAY - MEDALS OF HONOR AS THE ACT OF FEBRUARY 4, 1919, 40 STAT. 1056, WHICH COVERS THE ENTIRE FIELD ON THE SUBJECT OF AWARD OF MEDALS OF HONOR IN THE NAVY, REPEALS SECTION 1407, REVISED STATUTES, AND LAWS AMENDATORY THEREOF, PAYMENT IS NOT AUTHORIZED OF THE $100 GRATUITY UNDER SECTION 1407, REVISED STATUTES, AS AMENDED, FOR A MEDAL OF HONOR AWARDED AN ENLISTED MAN OF THE NAVY ON DECEMBER 4, 1924, FOR A MERITORIOUS SERVICE RENDERED APRIL 13, 1906.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 15, 1925:

ISIDOR NORDSTROM, CHIEF BOATSWAIN, UNITED STATES NAVY, HAS REQUESTED REVIEW OF SETTLEMENT N-11256, JUNE 18, 1925, BY WHICH WAS DISALLOWED HIS CLAIM FOR A GRATUITY OF $100 ON ACCOUNT OF A MEDAL OF HONOR AWARDED DECEMBER 4, 1924, PURSUANT TO NAVY GENERAL ORDER NO. 142 OF THAT DATE, AS FOLLOWS:

1. THE DEPARTMENT TAKES PLEASURE IN ANNOUNCING TO THE SERVICE THE AWARD OF A MEDAL OF HONOR AND A GRATUITY OF $100 TO ISIDOR NORDSTROM, CHIEF BOATSWAIN, UNITED STATES NAVY.

2. THE MEDAL OF HONOR IS AWARDED FOR GALLANT CONDUCT UPON THE OCCASION OF THE DISASTROUS FIRE OF ACCIDENTALLY IGNITED POWDER CHARGES WHICH OCCURRED IN THE FORWARD TURRET OF THE U.S.S. KEARSARGE DURING TARGET PRACTICE ON APRIL 13, 1906. NORDSTROM, THEN CHIEF BOATSWAIN'S MATE, WAS AMONG THE FIRST TO ENTER THE TURRET IN ORDER TO ASSIST IN BRINGING OUT THE INJURED.

3. THE DEPARTMENT ON MAY 5, 1906, CONCURRED IN THE RECOMMENDATION OF THE COMMANDING OFFICER OF THE U.S.S. KEARSARGE, AND HIGHLY COMMENDED THE BRAVERY DISPLAYED BY CHIEF BOATSWAIN NORDSTROM ON THAT OCCASION AND HIS FORGETFULNESS OF RISK TO HIMSELF, AND AS AN ADDITIONAL EVIDENCE OF APPRECIATION SUSPENDED THE REQUIREMENTS OF THE UNITED STATES NAVY REGULATIONS AND PERMITTED NORDSTROM, THEN CHIEF BOATSWAIN'S MATE, TO APPEAR FOR EXAMINATION AS A CANDIDATE FOR BOATSWAIN.

THE AWARD, WHILE NOT SO STATED, SEEMS TO HAVE BEEN ISSUED UNDER THE AUTHORITY OF SECTION 1407, REVISED STATUTES, AS AMENDED BY THE ACT OF MARCH 3, 1901, 31 STAT. 1099, SECTION 1407, REVISED STATUTES, PROVIDES:

SEAMEN DISTINGUISHING THEMSELVES IN BATTLE, OR BY EXTRAORDINARY HEROISM IN THE LINE OF THEIR PROFESSION, MAY BE PROMOTED TO FORWARD WARRANT OFFICERS, UPON THE RECOMMENDATION OF THEIR COMMANDING OFFICER,APPROVED BY THE FLAG-OFFICER AND THE SECRETARY OF THE NAVY. AND UPON SUCH RECOMMENDATION THEY SHALL RECEIVE A GRATUITY OF ONE HUNDRED DOLLARS AND A MEDAL OF HONOR, TO BE PREPARED UNDER THE DIRECTION OF THE NAVY DEPARTMENT.

THE ACT OF MARCH 3, 1901, PROVIDES:

THAT ANY ENLISTED MAN OF THE NAVY OR MARINE CORPS WHO SHALL HAVE DISTINGUISHED HIMSELF IN BATTLE OR DISPLAYED EXTRAORDINARY HEROISM IN THE LINE OF HIS PROFESSION SHALL, UPON THE RECOMMENDATION OF HIS COMMANDING OFFICER, APPROVED BY THE FLAG-OFFICER AND THE SECRETARY OF THE NAVY, RECEIVE A GRATUITY AND MEDAL OF HONOR AS PROVIDED FOR SEAMEN IN SECTION FOURTEEN HUNDRED AND SEVEN OF THE REVISED STATUTES.

THE ACT OF FEBRUARY 4, 1919, 40 STAT. 1056, CONTAINED PROVISIONS HEREINAFTER SET FORTH, BECAUSE OF WHICH THE PRIOR LAWS ON THE SUBJECT OF MEDALS OF HONOR IN THE NAVY AND MARINE CORPS WERE DECIDED TO HAVE BEEN REPEALED. 26 COMP. DEC. 464; 1 COMP. GEN. 240. IN THE LATTER CASE IN REACHING THAT CONCLUSION NOTICE WAS TAKEN OF AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY THAT THE ACT OF FEBRUARY 4, 1919, AUTHORIZED A MEDAL OF HONOR ONLY TO PERSONS IN THE NAVAL SERVICE WHO SHOULD IN ACTUAL CONFLICT WITH THE ENEMY DISTINGUISH THEMSELVES CONSPICUOUSLY, ETC., WHILE SECTION 1407, REVISED STATUTES, AS AMENDED, AUTHORIZED, IN ADDITION TO THE MEDAL OF HONOR FOR A DISTINGUISHED ACT IN BATTLE, THE AWARD OF THE MEDAL OF HONOR FOR A DISTINGUISHED ACT IN BATTLE, THE AWARD OF THE MEDAL OF HONOR FOR EXTRAORDINARY HEROISM IN THE LINE OF THEIR PROFESSION; THAT THE LATER LAW DID NOT SPECIFICALLY REPEAL PRIOR LAWS; THAT TO THIS EXTENT BOTH LAWS COULD OPERATE WITHOUT CONFLICT, AND AS REPEALS BY IMPLICATION ARE NOT FAVORED, THIS PORTION OF THE PRIOR LAWS WAS STILL EFFECTIVE.

CLAIMANT ADVANCES THE FURTHER CONTENTION THAT THE AWARD OF THE MEDAL OF HONOR TO HIM WAS FOR A SERVICE PRIOR TO THE ACT OF FEBRUARY 4, 1919; THAT IT WAS THROUGH NO FAULT OF HIS ACTION WAS NOT TAKEN SOONER, AND THAT HE IS ENTITLED TO PAYMENT IN ACCORDANCE WITH THE LAW IN EFFECT WHEN THE SERVICES WERE RENDERED FOR WHICH THE MEDAL OF HONOR WAS AWARDED.

THERE COULD BE NO RIGHT UNDER SECTION 1407, REVISED STATUTES, AS AMENDED, UNTIL THE AWARD OF THE MEDAL OF HONOR AND THE RIGHT TO A GRATUITY THEREUNDER MUST BE DETERMINED BY THE STATE OF THE LAW WHEN THE AWARD IS MADE. IN THE DECISIONS CITED IT WAS DETERMINED THE ACT OF FEBRUARY 4, 1919, HAD REPEALED THE LAW UNDER WHICH A GRATUITY MIGHT BE PAID. THESE DECISIONS SEEM NOT TO HAVE BEEN ACCEPTABLE TO THE NAVY DEPARTMENT, AS EVIDENCED BY THE ORDER ABOVE AND THE AWARD IN THE CASE OF ALBERT JOSEPH SMITH, 1 COMP. GEN. 240, WHERE, IN ADDITION TO THE MEDAL OF HONOR,"A GRATUITY OF $100" WAS AWARDED.

THE DECISIONS CITED BEING CONTROLLING WITH RESPECT TO APPROPRIATIONS FOR THE NAVY AN AWARD OF A "GRATUITY OF $100," WHICH IN VIEW THEREOF MAY NOT LAWFULLY BE PAID, IS NOT PROPER UNLESS THE PURPOSE BE TO OBTAIN FURTHER CONSIDERATION OF THE QUESTION BY THIS OFFICE. WHILE THE PROPER PROCEDURE FOR AN ADMINISTRATIVE OFFICE IS TO CONFORM TO THE DECISIONS OF THIS OFFICE AND MAKE SUBMISSION TO THE CONGRESS FOR SUCH ADDITIONAL LEGISLATION AS IT BELIEVES DESIRABLE OR NECESSARY, IT WILL BE ASSUMED IN THIS INSTANCE THAT THE PURPOSE IN MAKING THE AWARD WAS TO SECURE FURTHER CONSIDERATION OF THE QUESTION OF THIS OFFICE AND THE MATTER WILL BE TREATED ACCORDINGLY.

THE ACT OF FEBRUARY 4, 1919, IS ENTITLED:

AN ACT TO PROVIDE FOR THE AWARD OF MEDALS OF HONOR, DISTINGUISHED SERVICE MEDALS, AND NAVY CROSSES, AND FOR OTHER PURPOSES.

SECTIONS 1, 2, AND 3 AUTHORIZE THE AWARD OF THE MEDAL OF HONOR, THE DISTINGUISHED-SERVICE MEDAL, AND THE NAVY CROSS. THE PROVISION FOR THE AWARD OF THE MEDAL OF HONOR IS PROSPECTIVE, BUT WITH RESPECT TO THE DISTINGUISHED-SERVICE MEDAL AND THE NAVY CROSS THE STATUTE AUTHORIZED AN AWARD FOR SERVICES AS THEREIN DESCRIBED RENDERED AFTER THE 6TH DAY OF APRIL, 1917. SECTION 4 PROVIDES:

THAT EACH ENLISTED OR ENROLLED PERSON OF THE NAVAL SERVICE TO WHOM IS AWARDED A MEDAL OF HONOR, DISTINGUISHED-SERVICE MEDAL, OR A NAVY CROSS SHALL, FOR EACH SUCH AWARD, BE ENTITLED TO ADDITIONAL PAY AT THE RATE OF $2 PER MONTH FROM THE DATE OF THE DISTINGUISHED ACT OR SERVICE ON WHICH THE AWARD IS BASED, AND EACH BAR, OR OTHER SUITABLE EMBLEM OR INSIGNIA, IN LIEU OF A MEDAL OF HONOR, DISTINGUISHED-SERVICE MEDAL, OR NAVY CROSS, AS HEREINAFTER PROVIDED FOR, SHALL ENTITLE HIM TO FURTHER ADDITIONAL PAY AT THE RATE OF $2 PER MONTH FROM THE DATE OF THE DISTINGUISHED ACT OR SERVICE FOR WHICH THE BAR WAS AWARDED, AND SUCH ADDITIONAL PAY SHALL CONTINUE THROUGHOUT HIS ACTIVE SERVICE, WHETHER SUCH SERVICE SHALL OR SHALL NOT BE CONTINUOUS.

IT WILL BE OBSERVED THAT THIS SECTION IS PROSPECTIVE. THE AWARD FOR INCREASED PAY IS TO ATTACH TO MEDALS OF HONOR ISSUED THEREAFTER. THIS ACT DOES NOT, HOWEVER, DISTINGUISH BETWEEN THE MEDAL OF HONOR AWARDED UNDER SECTION 1407, REVISED STATUTES, AS AMENDED, AND THE MEDAL OF HONOR THEREIN PROVIDED FOR; BOTH ARE MEDALS OF HONOR, AND THE INCREASED PAY IS PROVIDED "FOR EACH ENLISTED OR ENROLLED PERSON OF THE NAVAL SERVICE TO WHOM IS AWARDED A MEDAL OF HONOR.' IF MEDALS OF HONOR ARE NOW AUTHORIZED TO BE ISSUED UNDER SECTION 1407, REVISED STATUTES, AS AMENDED, THEN, IN ADDITION TO THE GRATUITY OF $100, ADDITIONAL PAY OF $2 PER MONTH TO ENLISTED OR ENROLLED MEN IN THE NAVAL SERVICE AWARDED "MEDALS OF HONOR" AFTER FEBRUARY 4, 1909, UNDER SECTION 1407, REVISED STATUTES, AS AMENDED, WOULD BE AUTHORIZED; BUT THOSE TO WHOM THE MEDAL OF HONOR HAD BEEN AWARDED PRIOR TO FEBRUARY 4, 1909, WOULD NOT BE ENTITLED TO RECEIVE THE INCREASED PAY OF $2 PER MONTH. IT WAS SUGGESTED, 26 COMP. DEC. 465, THAT AFTER THE DECLARATION OF WAR WITH GERMANY CONGRESS ENACTED NEW AND EXHAUSTIVE LEGISLATION ON THE SUBJECT OF MEDALS OF HONOR AND OTHER AWARDS FOR DISTINGUISHED SERVICE, THE ARMY LAW BEING CONTAINED IN THE ACT OF JULY 9, 1918, 40 STAT. 870. SECTION 6 OF THE ACT OF MARCH 3, 1863, 12 STAT. 751, AUTHORIZED THE AWARD OF MEDALS OF HONOR TO OFFICERS AND ENLISTED MEN OF THE ARMY WHO HAD OR SHOULD THEREAFTER "MOST DISTINGUISH THEMSELVES IN ACTION; " BY THE ACT OF APRIL 23, 1904, 33 STAT. 274, APPROPRIATION WAS MADE FOR THE PROCUREMENT OF 3,000 MEDALS OF HONOR, TO BE PRESENTED BY THE DIRECTION OF THE PRESIDENT AND IN THE NAME OF CONGRESS TO EACH OFFICER, NONCOMMISSIONED OFFICER, AND PRIVATE OF THE ARMY "AS HAVE MOST DISTINGUISHED OR MAY HEREAFTER MOST DISTINGUISH THEMSELVES BY THEIR GALLANTRY IN ACTION.' NO GRATUITY OR OTHER PAYMENT WAS PROVIDED FOR MEDALS OF HONOR IN THE ARMY PRIOR TO JULY 9, 1918. THIS DIFFERENCE IN THE PRIOR LAWS RELATING TO THE AWARD OF MEDALS OF HONOR TO ENLISTED MEN OF THE ARMY AND ENLISTED MEN OF THE NAVY AND MARINE CORPS SEEMS TO HAVE BEEN IN THE CONSIDERATION OF CONGRESS WHEN IN THE ARMY ACT OF JULY 9, 1918, 40 STAT. 871, IT WAS PROVIDED THAT "EACH ENLISTED MAN OF THE ARMY TO WHOM THERE HAS BEEN OR SHALL BE AWARDED A MEDAL OF HONOR SHALL, * * * FOR EACH SUCH AWARD, BE ENTITLED TO ADDITIONAL PAY AT THE RATE OF $2 PER MONTH FROM THE DATE OF THE DISTINGUISHED ACT OR SERVICE ON WHICH THE AWARD IS BASED," WHILE IN THE NAVY ACT THE PAYMENT OF $2 PER MONTH IS LIMITED TO MEDALS OF HONOR AWARDED UNDER THAT ACT. IF THE MEDAL OF HONOR PROVIDED BY THE ACT OF FEBRUARY 4, 1919, WAS NOT IDENTICAL WITH THE MEDAL OF HONOR THERETOFORE PROVIDED BY SECTION 1407, REVISED STATUTES, AS AMENDED, IT WOULD SUGGEST A QUERY OF WHY ENLISTED MEN OF THE NAVY WERE DENIED PAY FOR MEDALS OF HONOR AWARDED FOR SERVICES PRIOR TO APRIL 6, 1917, AND MORE FAVORABLE PROVISION BE MADE FOR ENLISTED MEN OF THE ARMY. ESPECIALLY SO WHEN THE NAVY ACT WAS MODELED AFTER THE ARMY ACT, AND IN LARGE PART IDENTICAL WITH IT. THE ONLY ANSWER POSSIBLE IS THAT ENLISTED MEN OF THE NAVY HAD THERETOFORE BEEN PAID THE GRATUITY OF $100 UNDER SECTION 1407, REVISED STATUTES, AS AMENDED, WHILE ENLISTED MEN OF THE ARMY HAD RECEIVED NO MONEY ALLOWANCE FOR AN AWARD PRIOR TO JULY 9, 1918, OF THE MEDAL OF HONOR.

SECTION 6 OF THE ACT OF FEBRUARY 4, 1919, SHOWS MORE CLEARLY THAT THE LEGISLATION WAS DRAWN IN REFERENCE TO PRIOR NAVY LAWS. IT PROVIDES:

THAT THE SECRETARY OF THE NAVY IS HEREBY AUTHORIZED TO EXPEND FROM THE APPROPRIATION "PAY OF THE NAVY" OF THE NAVY DEPARTMENT SO MUCH AS MAY BE NECESSARY TO DEFRAY THE COST OF THE MEDALS OF HONOR, DISTINGUISHED-SERVICE MEDALS, AND NAVY CROSSES, AND BARS, EMBLEMS, OR INSIGNIA HEREIN PROVIDED FOR, AND SO MUCH AS MAY BE NECESSARY TO REPLACE ANY MEDALS, CROSSES, BARS, EMBLEMS, OR INSIGNIA AS ARE HEREIN OR MAY HERETOFORE HAVE BEEN PROVIDED FOR.

"OR MAY HERETOFORE HAVE BEEN PROVIDED FOR" CLEARLY IS A REFERENCE TO THE MEDAL OF HONOR AUTHORIZED BY SECTION 1407, REVISED STATUTES, AS AMENDED, AND SHOWS THAT THE PRIOR LAWS WERE IN THE CONSIDERATION OF CONGRESS WHEN THE ACT OF FEBRUARY 4, 1919, WAS PASSED.

SECTION 7 PROVIDES:

THAT, EXCEPT AS OTHERWISE PRESCRIBED HEREIN, NO MEDAL OF HONOR, DISTINGUISHED-SERVICE MEDAL, NAVY CROSS, OR BAR OR OTHER SUITABLE EMBLEM OR INSIGNIA IN LIEU OF EITHER OF SAID MEDALS OR OF SAID CROSS, SHALL BE ISSUED TO ANY PERSON AFTER MORE THAN FIVE YEARS FROM THE DATE OF THE ACT OR SERVICE JUSTIFYING THE AWARD THEREOF, NOR UNLESS A SPECIFIC STATEMENT OR REPORT DISTINCTLY SETTING FORTH THE ACT OR DISTINGUISHED SERVICE AND SUGGESTING OR RECOMMENDING OFFICIAL RECOGNITION THEREOF SHALL HAVE BEEN MADE BY HIS NAVAL SUPERIOR THROUGH OFFICIAL CHANNELS AT THE TIME OF THE ACT OR SERVICE OR WITHIN THREE YEARS THEREAFTER.

SECTION 1407, REVISED STATUTES, AS AMENDED, AUTHORIZED THE AWARD OF THE MEDAL OF HONOR TO ENLISTED MEN FOR "DISTINGUISHING THEMSELVES IN BATTLE.' BY THE ACT OF FEBRUARY 4, 1919, A MEDAL OF HONOR IS AUTHORIZED TO BE PRESENTED IN THE NAME OF CONGRESS TO ANY PERSON WHO, WHILE IN THE NAVAL SERVICE OF THE UNITED STATES,"SHALL IN ACTION INVOLVING ACTUAL CONFLICT WITH THE ENEMY, DISTINGUISH HIMSELF CONSPICUOUSLY BY GALLANTRY AND INTREPIDITY AT THE RISK OF HIS LIFE ABOVE AND BEYOND THE CALL OF DUTY AND WITHOUT DETRIMENT TO THE MISSION OF HIS COMMAND OR THE COMMAND TO WHICH ATTACHED.' IT IS CONCEDED THAT THE MEDAL OF HONOR AUTHORIZED BY THE ACT OF FEBRUARY 4, 1919, SUPERSEDES THE AUTHORITY FOR THE AWARD OF THE MEDAL OF HONOR FOR DISTINGUISHED SERVICE IN BATTLE THERETOFORE PROVIDED BY SECTION 1407, REVISED STATUTES, AS AMENDED. NO LIMITATION AS TO TIME IS FIXED IN SECTION 1407, REVISED STATUTES, AS AMENDED, FOR THE AWARD OF THE MEDAL OF HONOR WHILE THE AWARD OF THE MEDAL OF HONOR FOR THE HIGHEST FORM OF HEROIC SERVICE IS RESTRICTED IN THE ACT OF FEBRUARY 4, 1919; YET IT IS ARGUED THAT FOR THE LESS CONSPICUOUS SERVICE OF "EXTRAORDINARY HEROISM IN THE LINE OF THEIR PROFESSION" THE MEDAL OF HONOR MAY BE AWARDED AT ANY TIME; THAT IS, THAT THE LAW CONTEMPLATES GREATER LIBERALITY FOR THE LESS DISTINGUISHED SERVICE.

SECTION 3 OF THE ACT PROVIDES:

THAT THE PRESIDENT BE, AND HE HEREBY IS, FURTHER AUTHORIZED TO PRESENT, BUT NOT IN THE NAME OF CONGRESS, A NAVY CROSS OF APPROPRIATE DESIGN AND A RIBBON, TOGETHER WITH A ROSETTE OR OTHER DEVICE TO BE WORN IN LIEU THEREOF, TO ANY PERSON WHO, WHILE IN THE NAVAL SERVICE OF THE UNITED STATES, SINCE THE SIXTH DAY OF APRIL, NINETEEN HUNDRED AND SEVENTEEN HAS DISTINGUISHED OR WHO SHALL HEREAFTER DISTINGUISH HIMSELF BY EXTRAORDINARY HEROISM OR DISTINGUISHED SERVICE IN THE LINE OF HIS PROFESSION, SUCH HEROISM OR SERVICE NOT BEING SUFFICIENT TO JUSTIFY THE AWARD OF A MEDAL OF HONOR OR A DISTINGUISHED-SERVICE MEDAL. SECTION 1407, REVISED STATUTES, AS AMENDED, AUTHORIZED AN AWARD OF THE MEDAL OF HONOR TO ENLISTED MEN FOR "DISTINGUISHING THEMSELVES * * * BY EXTRAORDINARY HEROISM IN THE LINE OF THEIR PROFESSION.' THE ACT OF FEBRUARY 4, 1919, HAVING LIMITED THE AWARD OF THE MEDAL OF HONOR ONLY FOR SERVICES DURING ACTUAL CONFLICT WITH AN ENEMY, IT AUTHORIZED THEREAFTER THE AWARD OF THE DISTINGUISHED-SERVICE MEDAL TO ANY PERSON IN THE NAVAL SERVICE WHO SUBSEQUENT TO APRIL 6, 1917, AND WHILE IN THE NAVAL SERVICE OF THE UNITED STATES SHOULD "DISTINGUISH HIMSELF BY EXCEPTIONALLY MERITORIOUS SERVICE TO THE GOVERNMENT IN A DUTY OF GREAT RESPONSIBILITY," AND PROVIDED FOR THE AWARD OF A NAVY CROSS TO ANY PERSON IN THE NAVAL SERVICE WHO SUBSEQUENT TO APRIL 6, 1917, SHOULD ,DISTINGUISH HIMSELF BY EXTRAORDINARY HEROISM * * * IN THE LINE OF HIS PROFESSION.' THIS LATTER PROVISION FOR THE AWARD OF THE NAVY CROSS USES THE IDENTICAL PHRASEOLOGY OF SECTION 1407, REVISED STATUTES. IS IT POSSIBLE THAT CONGRESS, HAVING LIMITED THE AWARD OF THE MEDAL OF HONOR ONLY FOR SERVICES IN ACTUAL CONFLICT WITH AN ENEMY AND REQUIRING THE AWARD TO BE MADE WITHIN FIVE YEARS AFTER THE DATE OF THE ACT OR SERVICE, SHOULD HAVE CONTEMPLATED THE AWARD OF THE MEDAL OF HONOR UNDER SECTION 1407, REVISED STATUTES, AS AMENDED, FOR EXTRAORDINARY HEROISM IN THE LINE OF THEIR PROFESSION WITHOUT LIMIT AS TO TIME, AND ALSO HAVE MADE SUPPLEMENTAL PROVISION FOR EXTRAORDINARY HEROISM IN LINE OF THEIR PROFESSION; BUT, BE IT NOTED IN THE CASE OF THIS "SUPPLEMENTAL" PROVISION FOR A NAVY CROSS, THE AWARD MUST BE MADE WITHIN FIVE YEARS OF THE ACT OR SERVICE AND ON A RECOMMENDATION MADE AT THE TIME OR WITHIN THREE YEARS OF THE RENDITION OF THE SERVICES; THAT IS, THE LESSER AWARD IS RESTRICTED WHILE THE GREATER IS NOT.

THE PROVISO IN SECTION 8 IS:

* * * THAT IN CASES OF PERSONS NOW IN THE NAVAL SERVICE FOR WHOM THE AWARD OF THE MEDAL OF HONOR HAS BEEN RECOMMENDED IN FULL COMPLIANCE WITH THEN EXISTING REGULATIONS, BUT ON ACCOUNT OF SERVICES WHICH, THOUGH INSUFFICIENT FULLY TO JUSTIFY THE AWARD OF THE MEDAL OF HONOR, APPEARS TO HAVE BEEN SUCH AS TO JUSTIFY THE AWARD OF THE DISTINGUISHED SERVICE MEDAL OR NAVY CROSS HEREINBEFORE PROVIDED FOR, SUCH CASES MAY BE CONSIDERED AND ACTED UPON UNDER THE PROVISIONS OF THIS ACT AUTHORIZING THE AWARD OF THE DISTINGUISHED-SERVICE MEDAL AND NAVY CROSS NOTWITHSTANDING THAT SAID SERVICES MAY HAVE BEEN RENDERED MORE THAN FIVE YEARS BEFORE SAID CASES SHALL HAVE BEEN CONSIDERED AS AUTHORIZED BY THIS PROVISO, BUT ALL CONSIDERATION OR ANY ACTION UPON ANY OF SAID CASES SHALL BE BASED EXCLUSIVELY UPON OFFICIAL RECORDS NOW ON FILE IN THE NAVY DEPARTMENT.

HERE IS A RECOGNITION OF THE FACT THAT MERITORIOUS SERVICES HAD THERETOFORE BEEN RENDERED WHICH WERE NOT OF A CHARACTER TO JUSTIFY THE AWARD OF THE MEDAL OF HONOR, BUT YET OF A CHARACTER THAT SHOULD BE REWARDED BY A LESSER HONOR, AND SUCH CASES WERE EXCEPTED FROM THE TIME LIMIT OF FIVE YEARS. NOTE ALSO THAT IN THIS PROVISO THE REFERENCE IS TO "THE MEDAL OF HONOR. THERE IS AND THERE HAS BEEN IN THE NAVY BUT ONE MEDAL OF HONOR--- THE HIGHEST DECORATION AWARDED BY AUTHORITY OF CONGRESS, WHETHER UNDER SECTION 1407 REVISED STATUTES, AS AMENDED, OR UNDER THE ACT OF FEBRUARY 4, 1919.

THE PREVENTION OF ABUSE BY OFFICERS OF THE SERVICES WHO, SUBSEQUENTLY REACHING GRADES AND ATTAINING POSITIONS OF AUTHORITY IN THE DEPARTMENTS IN WASHINGTON, COULD EXERCISE INFLUENCE OR DIRECTION IN THE AWARD OF THE MEDAL OF HONOR FOR SERVICES WHICH CONTEMPORANEOUSLY HAD NOT BEEN DEEMED SUFFICIENT TO JUSTIFY SUCH ISSUE, WAS IN THE CONTEMPLATION OF CONGRESS IN LIMITING THE TIME WITHIN WHICH THE AWARD COULD BE MADE. THE MATTER HAD THERETOFORE BEEN THE SUBJECT OF LEGISLATION AFFECTING THE ARMY. SEE SECTION 122 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 214, WHERE IT WAS PROVIDED:

INVESTIGATION CONCERNING MEDALS OF HONOR.--- A BOARD TO CONSIST OF FIVE GENERAL OFFICERS ON THE RETIRED LIST OF THE ARMY SHALL BE CONVENED BY THE SECRETARY OF WAR, WITHIN SIXTY DAYS AFTER THE APPROVAL OF THIS ACT, FOR THE PURPOSE OF INVESTIGATING AND REPORTING UPON PAST AWARDS OR ISSUES OF THE SO-CALLED CONGRESSIONAL MEDAL OF HONOR BY OR THROUGH THE WAR DEPARTMENT; THIS WITH A VIEW TO ASCERTAIN WHAT MEDALS OF HONOR, IF ANY, HAVE BEEN AWARDED OR ISSUED FOR ANY CAUSE OTHER THAN DISTINGUISHED CONDUCT BY AN OFFICER OR ENLISTED MAN IN ACTION INVOLVING ACTUAL CONFLICT WITH AN ENEMY BY SUCH OFFICER OR ENLISTED MAN OR BY TROOPS WITH WHICH HE WAS SERVING AT THE TIME OF SUCH ACTION. AND IN ANY CASE IN WHICH SAID BOARD SHALL FIND AND REPORT THAT SAID MEDAL WAS ISSUED FOR ANY CAUSE OTHER THAN THAT HEREINBEFORE SPECIFIED THE NAME OF THE RECIPIENT OF THE MEDAL SO ISSUED SHALL BE STRICKEN PERMANENTLY FROM THE OFFICIAL MEDAL OF HONOR LIST. IT SHALL BE A MISDEMEANOR FOR HIM TO WEAR OR PUBLICLY DISPLAY SAID MEDAL, AND, IF HE SHALL STILL BE IN THE ARMY, HE SHALL BE REQUIRED TO RETURN SAID MEDAL TO THE WAR DEPARTMENT FOR CANCELLATION. SAID BOARD SHALL HAVE FULL AND FREE ACCESS TO AND USE OF ALL RECORDS PERTAINING TO THE AWARD OR ISSUE OF MEDALS OF HONOR BY OR THROUGH THE WAR DEPARTMENT.

IT IS, I THINK, PLAIN FROM A CONSIDERATION OF THE STATUTES IN PARI MATERIA, THERE IS, AND THERE HAS BEEN, BUT ONE MEDAL OF HONOR, THAT IT MAY NOT BE AWARDED EXCEPT AS PROVIDED IN THE LATEST LAW ON THE SUBJECT; THAT IN LIEU OF A MEDAL OF HONOR FOR DISTINGUISHED SERVICE IN THE LINE OF THEIR PROFESSION AND NOT IN ACTION INVOLVING ACTUAL CONFLICT WITH AN ENEMY THE NAVY CROSS HAS BEEN PROVIDED IN THE ACT OF JUNE 4, 1919, IN LIEU OF THE MEDAL OF HONOR THERETOFORE AUTHORIZED TO BE AWARDED FOR SUCH SERVICE. THAT ACT PROVIDING FOR AWARDS OF THE MEDAL OF HONOR THEREFORE COVERS THE ENTIRE FIELD; PRIOR LAWS CAN NOT OPERATE WITHOUT DOING VIOLENCE TO THE MOST ELEMENTARY PRINCIPLES OF JUSTICE AND PROPRIETY IN THE AWARD OF THE HIGHEST DECORATION FOR DISTINGUISHED SERVICE IN BATTLE AUTHORIZED BY LAW. NO PORTION OF SECTION 1407, REVISED STATUTES, AS AMENDED, CAN OPERATE WITHOUT CONFLICT WITH THE ACT OF FEBRUARY 4, 1919, AND IT IS NECESSARILY REPEALED.

THE ISSUANCE OF A MEDAL OF HONOR TO CLAIMANT DECEMBER 4, 1924, FOR EXTRAORDINARY HEROISM APRIL 13, 1906, IN THE LINE OF HIS PROFESSION WAS NOT ONLY WITHOUT AUTHORITY OF LAW, BUT DIRECTLY CONTRARY TO LAW. SECTION 1407, REVISED STATUTES, AS AMENDED, IS REPEALED AND NO PAYMENT IS AUTHORIZED UNDER THE TERMS OF THAT ACT. THE SETTLEMENT MUST BE AND IS SUSTAINED.