A-13860, MAY 20, 1926, 5 COMP. GEN. 922

A-13860: May 20, 1926

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ARMY PAY - CONDITIONAL PROMOTION OF OFFICER IN DENTAL CORPS AN OFFICER OF THE DENTAL CORPS OF THE ARMY WHO WAS PROMOTED SUBJECT TO EXAMINATION UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 2. WAS PROMOTED ON CONDITION THAT HE BE FOUND QUALIFIED FOR PROMOTION UPON EXAMINATION AS PRESCRIBED BY THE ACT OF APRIL 23. WHERE SUCH OFFICER WAS SUBSEQUENTLY FOUND DISQUALIFIED FOR PROMOTION HE IS NOT ENTITLED TO THE PAY OF THE HIGHER GRADE FOR ANY PERIOD. CLAIMANT WAS APPOINTED FIRST LIEUTENANT. HE WAS ADVISED BY LETTER DATED JANUARY 3. HE FAILED IN HIS EXAMINATION FOR PROMOTION TO THE HIGHER GRADE AND BY REASON OF SUCH FAILURE WAS DISCHARGED FROM THE SERVICE JUNE 11. THE ACTS OPPOSITE TO THIS CASE ARE AS FOLLOWS: THE PRESIDENT IS HEREBY AUTHORIZED TO APPOINT AND COMMISSION.

A-13860, MAY 20, 1926, 5 COMP. GEN. 922

ARMY PAY - CONDITIONAL PROMOTION OF OFFICER IN DENTAL CORPS AN OFFICER OF THE DENTAL CORPS OF THE ARMY WHO WAS PROMOTED SUBJECT TO EXAMINATION UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 2, 1901, 31 STAT. 756, WAS PROMOTED ON CONDITION THAT HE BE FOUND QUALIFIED FOR PROMOTION UPON EXAMINATION AS PRESCRIBED BY THE ACT OF APRIL 23, 1908, 35 STAT. 67, AND WHERE SUCH OFFICER WAS SUBSEQUENTLY FOUND DISQUALIFIED FOR PROMOTION HE IS NOT ENTITLED TO THE PAY OF THE HIGHER GRADE FOR ANY PERIOD, HE BEING TREATED AS TO PROMOTION AND PAY IN THE SAME MANNER AS IF HE HAD BEEN EXAMINED PRIOR TO PROMOTION AND HAD FAILED IN HIS EXAMINATION.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 20, 1926:

EARP T. DICKMAN HAS REQUESTED REVIEW OF SETTLEMENT NO. 0103425, DATED NOVEMBER 14, 1925, DISALLOWING HIS CLAIM FOR THE DIFFERENCE BETWEEN PAY AS FIRST LIEUTENANT AND PAY AS MAJOR, DENTAL CORPS, UNITED STATES ARMY, DURING THE PERIOD FROM OCTOBER 6, 1917, TO MAY 31, 1918.

CLAIMANT WAS APPOINTED FIRST LIEUTENANT, DENTAL SURGEON, REGULAR ARMY, TO RANK FROM OCTOBER 24, 1916, AND ACCEPTED NOVEMBER 16, 1916. HE WAS ADVISED BY LETTER DATED JANUARY 3, 1918, FROM THE ADJUTANT GENERAL OF THE ARMY THAT HE HAD BEEN PROMOTED TO THE GRADE OF MAJOR IN THE DENTAL CORPS OF THE ARMY, SUBJECT TO EXAMINATION, AND THAT UPON PASSING A SATISFACTORY EXAMINATION A COMMISSION IN DUE FORM WOULD BE ISSUED TO HIM. HE ACCEPTED SUCH CONDITIONAL APPOINTMENT JANUARY 8, 1918. ON JANUARY 22, 1918, HE FAILED IN HIS EXAMINATION FOR PROMOTION TO THE HIGHER GRADE AND BY REASON OF SUCH FAILURE WAS DISCHARGED FROM THE SERVICE JUNE 11, 1918.

THE ACTS OPPOSITE TO THIS CASE ARE AS FOLLOWS:

THE PRESIDENT IS HEREBY AUTHORIZED TO APPOINT AND COMMISSION, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, DENTAL SURGEONS, WHO ARE CITIZENS OF THE UNITED STATES BETWEEN THE AGES OF TWENTY-ONE AND TWENTY-SEVEN YEARS, AT THE RATE OF ONE FOR EACH ONE THOUSAND ENLISTED MEN OF THE LINE OF THE ARMY. DENTAL SURGEONS SHALL HAVE THE RANK, PAY, AND ALLOWANCES OF FIRST LIEUTENANTS UNTIL THEY HAVE COMPLETED EIGHT YEARS' SERVICE. DENTAL SURGEONS OF MORE THAN EIGHT BUT LESS THAN TWENTY-FOUR YEARS' SERVICE SHALL, SUBJECT TO SUCH EXAMINATION AS THE PRESIDENT MAY PRESCRIBE, HAVE THE RANK, PAY, AND ALLOWANCES OF CAPTAINS. DENTAL SURGEONS OF MORE THAN TWENTY-FOUR YEARS' SERVICE SHALL, SUBJECT TO SUCH EXAMINATION AS THE PRESIDENT MAY PRESCRIBE, HAVE THE RANK, PAY, AND ALLOWANCES OF MAJOR: * * * AND PROVIDED FURTHER, THAT ALL LAWS RELATING TO THE EXAMINATION OF OFFICERS OF THE MEDICAL CORPS FOR PROMOTION SHALL BE APPLICABLE TO DENTAL SURGEONS. (SECTION 10 OF THE NATIONAL DEFENSE ACT, 39 STAT. 173.)

HEREAFTER THE DENTAL CORPS OF THE ARMY SHALL CONSIST OF COMMISSIONED OFFICERS OF THE SAME GRADE AND PROPORTIONALLY DISTRIBUTED AMONG SUCH GRADES AS ARE NOW OR MAY BE HEREAFTER PROVIDED BY LAW FOR THE MEDICAL CORPS, WHO SHALL HAVE THE RANK, PAY, PROMOTION AND ALLOWANCES OF OFFICERS OF CORRESPONDING GRADES IN THE MEDICAL CORPS, INCLUDING THE RIGHT TO RETIREMENT AS IN THE CASE OF OTHER OFFICERS, AND THERE SHALL BE ONE DENTAL OFFICER FOR EVERY THOUSAND OF THE TOTAL STRENGTH OF THE REGULAR ARMY AUTHORIZED FROM TIME TO TIME BY LAW: PROVIDED FURTHER, THAT DENTAL EXAMINING AND REVIEW BOARDS SHALL CONSIST OF ONE OFFICER OF THE MEDICAL CORPS AND TWO OFFICERS OF THE DENTAL CORPS: PROVIDED FURTHER, THAT IMMEDIATELY FOLLOWING THE APPROVAL OF THIS ACT ALL DENTAL SURGEONS THEN IN ACTIVE SERVICE SHALL BE RECOMMISSIONED IN THE DENTAL CORPS IN THE GRADES HEREIN AUTHORIZED IN THE ORDER OF THEIR SENIORITY AND WITHOUT LOSS OF PAY OR ALLOWANCES OR OF RELATIVE RANK IN THE ARMY: AND PROVIDED FURTHER, THAT NO DENTAL SURGEON SHALL BE RECOMMISSIONED WHO HAS NOT BEEN CONFIRMED BY THE SENATE. (ACT OF OCTOBER 6, 1917, 40 STAT. 397.)

SEC. 5. THAT NO OFFICER OF THE MEDICAL CORPS BELOW THE RANK OF LIEUTENANT-COLONEL SHALL BE PROMOTED THEREIN UNTIL HE SHALL HAVE SUCCESSFULLY PASSED AN EXAMINATION BEFORE AN ARMY MEDICAL BOARD CONSISTING OF NOT LESS THAN THREE OFFICERS OF THE MEDICAL CORPS, TO BE DESIGNATED BY THE SECRETARY OF WAR, SUCH EXAMINATION TO BE PRESCRIBED BY THE SECRETARY OF WAR AND TO BE HELD AT SUCH TIME ANTERIOR TO THE ACCRUING OF THE RIGHT TO PROMOTION AS MAY BE FOR THE BEST INTERESTS OF THE SERVICE: PROVIDED, THAT SHOULD ANY OFFICER OF THE MEDICAL CORPS FAIL IN HIS PHYSICAL EXAMINATION AND BE FOUND INCAPACITATED FOR SERVICE BY REASON OF PHYSICAL DISABILITY CONTRACTED IN THE LINE OF DUTY, HE SHALL BE RETIRED WITH THE RANK TO WHICH HIS SENIORITY ENTITLED HIM TO BE PROMOTED; BUT IF HE SHOULD BE FOUND DISQUALIFIED FOR PROMOTION FOR ANY OTHER REASON, A SECOND EXAMINATION SHALL NOT BE ALLOWED, BUT THE SECRETARY OF WAR SHALL APPOINT A BOARD OF REVIEW TO CONSIST OF THREE OFFICERS OF THE MEDICAL CORPS SUPERIOR IN RANK TO THE OFFICER EXAMINED, NONE OF WHOM SHALL HAVE SERVED AS A MEMBER OF THE BOARD WHICH EXAMINED HIM. IF THE UNFAVORABLE FINDING OF THE EXAMINING BOARD IS CONCURRED IN BY THE BOARD OF REVIEW, THE OFFICER REPORTED DISQUALIFIED FOR PROMOTION SHALL, IF A FIRST LIEUTENANT OR A CAPTAIN, BE HONORABLY DISCHARGED FROM THE SERVICE WITH ONE YEAR'S PAY; * * *. (SECTION 5, ACT OF APRIL 23, 1908, 35 STAT. 67.)

SEC. 32. THAT WHEN THE EXIGENCIES OF THE SERVICE OF ANY OFFICER WHO WOULD BE ENTITLED TO PROMOTION UPON EXAMINATION REQUIRE HIM TO REMAIN ABSENT FROM ANY PLACE WHERE AN EXAMINING BOARD COULD BE CONVENED, THE PRESIDENT IS HEREBY AUTHORIZED TO PROMOTE SUCH OFFICER, SUBJECT TO EXAMINATION, AND THE EXAMINATION SHALL TAKE PLACE AS SOON THEREAFTER AS PRACTICABLE. IF UPON EXAMINATION THE OFFICER BE FOUND DISQUALIFIED FOR PROMOTION, HE SHALL, UPON THE APPROVAL OF THE PROCEEDINGS BY THE SECRETARY OF WAR, BE TREATED IN THE SAME MANNER AS IF HE HAD BEEN EXAMINED PRIOR TO PROMOTION. (ACT OF FEBRUARY 2, 1901, 31 STAT. 756.)

AN OFFICER'S PROMOTION BY THE PRESIDENT "SUBJECT TO EXAMINATION" AS AUTHORIZED BY THE ACT OF FEBRUARY 2, 1901, IS ON CONDITION THAT HE BE FOUND QUALIFIED AND IF BY EXAMINATION IT BE SHOWN THAT HE WAS INCOMPETENT OR DISQUALIFIED FOR PROMOTION, HE IS TO BE TREATED AS TO PROMOTION AND PAY "IN THE SAME MANNER AS IF HE HAD BEEN EXAMINED PRIOR TO PROMOTION" AND HAD FAILED IN HIS EXAMINATION, WHICH, IN EFFECT, REQUIRES THAT HE BE HONORABLY DISCHARGED FROM THE SERVICE WITH ONE YEAR'S PAY AUTHORIZED FOR THE RANK IN WHICH HE WAS SERVING PRIOR TO HIS CONDITIONAL PROMOTION AND HE IS NOT ENTITLED TO THE PAY OF THE HIGHER GRADE FOR ANY PERIOD. 17 COMP. DEC. 264.

THE ORIGINAL RECORDS ON FILE IN THIS OFFICE SHOW THAT CLAIMANT WAS PAID AS MAJOR FOR THE MONTH OF MAY, 1918, TOGETHER WITH THE DIFFERENCE BETWEEN PAY OF FIRST LIEUTENANT AND MAJOR FOR THE PERIOD FROM OCTOBER 6, 1917, TO APRIL 30, 1918, IN THE AMOUNT OF $652.75, BUT UPON DETERMINATION THAT HE HAD FAILED IN HIS EXAMINATION FOR PROMOTION, AND IN ORDER TO GIVE EFFECT TO THE PROVISIONS OF THE 1901 ACT SUCH AMOUNT WAS WITHHELD FROM HIS FINAL PAY WHICH INCLUDED ONE YEAR'S PAY AS FIRST LIEUTENANT, IN ACCORDANCE WITH THE PROVISIONS OF THE 1908 ACT.

IN VIEW OF THE PRECISE PROVISIONS OF LAW APPLICABLE TO THE FACTS IN THIS CASE IT IS NOT NECESSARY TO CONSIDER WHETHER, WERE IT OTHERWISE, THE DOCTRINE OF THE ROYER CASE DECIDED BY THE UNITED STATES SUPREME COURT ON MAY 25, 1925, WOULD BE APPLICABLE.