A-584, AUGUST 3, 1925, 5 COMP. GEN. 79

A-584: Aug 3, 1925

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NAVY PAY - PROMOTION WHERE AN OFFICER OF THE NAVY IS EXAMINED FOR PROMOTION TO AN EXISTING VACANCY AND IS FOUND NOT PHYSICALLY QUALIFIED. IS SUBSEQUENTLY REEXAMINED. EVENTUALLY IS FOUND PHYSICALLY QUALIFIED FOR PROMOTION AND A COMMISSION IS ISSUED GIVING A DATE OF RANK FROM THE DATE THE VACANCY IN THE HIGHER GRADE OCCURRED. SUCH PROMOTION IS PURSUANT TO LAW AND THE OFFICER IS ENTITLED TO PAY OF THE HIGHER GRADE FROM THE DATE STATED IN HIS COMMISSION. DATE ON WHICH HE WAS FOUND QUALIFIED AND RECOMMENDED FOR PROMOTION. CAPTAIN STEVENSON WAS EXAMINED BY A BOARD OF MEDICAL EXAMINERS AND FOUND NOT PHYSICALLY QUALIFIED. THIS RECOMMENDATION WAS APPROVED BY THE SECRETARY OF THE NAVY ON AUGUST 10.

A-584, AUGUST 3, 1925, 5 COMP. GEN. 79

NAVY PAY - PROMOTION WHERE AN OFFICER OF THE NAVY IS EXAMINED FOR PROMOTION TO AN EXISTING VACANCY AND IS FOUND NOT PHYSICALLY QUALIFIED, IS SUBSEQUENTLY REEXAMINED, AND EVENTUALLY IS FOUND PHYSICALLY QUALIFIED FOR PROMOTION AND A COMMISSION IS ISSUED GIVING A DATE OF RANK FROM THE DATE THE VACANCY IN THE HIGHER GRADE OCCURRED, SUCH PROMOTION IS PURSUANT TO LAW AND THE OFFICER IS ENTITLED TO PAY OF THE HIGHER GRADE FROM THE DATE STATED IN HIS COMMISSION, UNDER THE ACT OF MARCH 4, 1913, 37 STAT. 892. 22 COMP. DEC. 591, OVERRULED.

DECISION BY ACTING COMPTROLLER GENERAL GINN, AUGUST 3, 1925:

GRACE G. STEVENSON, WIDOW OF THE LATE CHAPLAIN (CAPT.) GEORGE E. T. STEVENSON, UNITED STATES NAVY, REQUESTS REVIEW OF SETTLEMENT OF CLAIM FOR DIFFERENCE IN PAY DUE HER LATE HUSBAND AS A CAPTAIN AND COMMANDER IN THE NAVY FROM JUNE 30, 1919, DATE HE TOOK RANK AS STATED IN HIS COMMISSION, TO JANUARY 5, 1923, DATE ON WHICH HE WAS FOUND QUALIFIED AND RECOMMENDED FOR PROMOTION.

ON JULY 15, 1920, CAPTAIN STEVENSON WAS EXAMINED BY A BOARD OF MEDICAL EXAMINERS AND FOUND NOT PHYSICALLY QUALIFIED, THE BOARD RECOMMENDING THAT HE BE REEXAMINED IN THREE MONTHS IN ORDER TO ASCERTAIN THE EXTENT OF HIS INCAPACITY. THIS RECOMMENDATION WAS APPROVED BY THE SECRETARY OF THE NAVY ON AUGUST 10, 1920. HE WAS AGAIN EXAMINED ON DECEMBER 15, 1920, AND FOUND NOT PHYSICALLY QUALIFIED. THE SECRETARY OF THE NAVY DISAPPROVED THIS FINDING ON JANUARY 22, 1921, AND DIRECTED THAT THE OFFICER BE ORDERED TO APPEAR BEFORE ANOTHER BOARD CONSISTING OF ENTIRELY NEW MEMBERS. FEBRUARY 23, 1921, CHAPLAIN STEVENSON WAS AGAIN EXAMINED AND FOUND NOT PHYSICALLY QUALIFIED. NO ACTION WAS TAKEN ON THIS FINDING, BUT THE SECRETARY DIRECTED THAT HE BE GRANTED SIX MONTHS' SICK LEAVE AND BE REEXAMINED PHYSICALLY UPON EXPIRATION OF THAT PERIOD. ON NOVEMBER 21, 1921, HE AGAIN FAILED TO QUALIFY BEFORE THE BOARD OF MEDICAL EXAMINERS, THE BOARD'S REPORT BEING APPROVED BY THE SECRETARY OF THE NAVY ON DECEMBER 10, 1921. ON DECEMBER 8, 1922, HE WAS AGAIN EXAMINED, FOUND PHYSICALLY QUALIFIED AND RECOMMENDED FOR PROMOTION. ON JANUARY 5, 1923, THE SECRETARY OF THE NAVY APPROVED THE PROCEEDINGS, FINDINGS, AND RECOMMENDATIONS OF THE LAST MEDICAL BOARD AND OF THE NAVAL EXAMINING BOARD OF NOVEMBER 13, 1920, AND COMMISSION WAS ISSUED TO CHAPLAIN STEVENSON ON FEBRUARY 3, 1923, TO RANK AS CAPTAIN FROM JUNE 30, 1919, TO FILL A VACANCY CREATED BY THE DEATH OF CAPT. W. G. CASSARD.

THE QUESTION AS TO THE DATE FROM WHICH AN OFFICER IS ENTITLED TO PAY IN THE HIGHER RANK WHEN ON EXAMINATION FOR PROMOTION HE IS FOUND NOT PHYSICALLY QUALIFIED BECAUSE OF A CONDITION POSSIBLY TEMPORARY, AND IS ACCORDED ONE OR MORE SUBSEQUENT EXAMINATIONS, AND IS EVENTUALLY FOUND PHYSICALLY QUALIFIED FOR PROMOTION, HAS BEEN THE SUBJECT OF DIVERSE OPINIONS. IN 22 COMP. DEC. 591, IS CONSIDERED THE CLAIM OF DOWNES TO THE PAY OF LIEUTENANT COMMANDER FROM THE DATE STATED IN HIS COMMISSION, THAT IS, THE DATE OF THE OCCURRENCE OF THE VACANCY TO WHICH PROMOTED, AND WHO ON HIS FIRST EXAMINATION WAS FOUND NOT PHYSICALLY QUALIFIED, AND IT WAS SAID:

* * * ON HIS DISQUALIFICATION FOR THE PROMOTION ON SEPTEMBER 15, 1914, HE RELINQUISHED ANY SENIORITY RIGHT HE POSSESSED TO A VACANCY OF JULY 1, 1914, AND ANY SUCH VACANCY, TOGETHER WITH ANY VACANCIES THEREAFTER OCCURRING PRIOR TO MARCH 27, 1915, WERE THROWN OPEN TO THE OFFICERS BELOW HIM IN THE ORDER OF THEIR SENIORITY. (16 OPIN.ATTY.GEN. 587; 25 ID. 568, 572.) * * *

BOTH OF THE CITED OPINIONS IN THE QUOTED EXTRACT WERE RENDERED RESPECTING THE PROMOTION OF OFFICERS WHO FAILED IN THEIR PROFESSIONAL EXAMINATION AND WERE SUSPENDED FROM PROMOTION AS REQUIRED BY SECTION 1505, REVISED STATUTES. IT APPEARS THAT DOWNES FILED HIS PETITION IN THE COURT OF CLAIMS CONTENDING FOR PAY FROM THE DATE STATED IN HIS COMMISSION UNDER THE ACT OF MARCH 4, 1913, 37 STAT. 892, AND THE COURT,52 CT.CLS. 237, WHILE NOT SUSTAINING THE CONTENTION THAT THE CLAIM WAS PAYABLE SOLELY BECAUSE OF DATE STATED IN THE COMMISSION UNDER THE TERMS OF THE ACT, ALLOWED THE CLAIM AS A PROMOTION PURSUANT TO LAW AND PAYABLE UNDER THE ACT. IN THE OPINION OF THE COURT, AFTER RECITING THE FACTS, IT IS STATED:

UPON THE SAID FACTS A CONCLUSION IS SOUGHT TO BE DEDUCED THAT ON ACCOUNT OF HIS DISQUALIFICATION FOR PROMOTION ON SEPTEMBER 15, 1914, THE PLAINTIFF RELINQUISHED ANY SENIORITY RIGHT HE POSSESSED TO THE VACANCY TO WHICH HE WAS SUBSEQUENTLY PROMOTED. WE DO NOT THINK THAT SUCH A CONCLUSION IS PROPERLY DEDUCIBLE UNDER THE CIRCUMSTANCES OF THIS CASE. * * * WE HAVE NOT BEEN SHOWN ANY STATUTE WHICH DEALS SPECIFICALLY WITH A FAILURE TO QUALIFY PHYSICALLY ON EXAMINATION FURTHER THAN THE GENERAL STATUTE, SECTION 1493 OF THE REVISED STATUTES, PROVIDING THAT NO OFFICER SHALL BE PROMOTED TO A HIGHER GRADE ON THE ACTIVE LIST UNTIL HE HAS BEEN EXAMINED AND PRONOUNCED PHYSICALLY QUALIFIED TO PERFORM ALL OF HIS DUTIES AT SEA. WHEN, FINDING THE LAW SILENT ON THE QUESTION AS TO WHETHER ANOTHER EXAMINATION IS ALLOWABLE, THOSE IN AUTHORITY DECIDE UPON A COURSE WHICH GIVES THE OFFICER A REASONABLE OPPORTUNITY TO BE TREATED FOR A TEMPORARY PHYSICAL AILMENT AND THEN BE REEXAMINED WE DO NOT SEE HOW THEIR ACTION IN THE PREMISES IS REVISABLE BY THIS COURT. IT WOULD SEEM, HOWEVER, THAT THE OFFICER'S SENIORITY RIGHT IS COINCIDENT WITH HIS STATUS AS A LIEUTENANT IN THE NAVY, AND SO LONG AS HE REMAINED A LIEUTENANT THE OTHER RIGHT ATTACHED. HE WAS NOT RETIRED BUT WAS PROMOTED TO A VACANCY WHICH HAD EXISTED ALL THE TIME AND TO WHICH HE WAS ELIGIBLE ON THE 1ST DAY OF JULY, 1914.

IN THE CASE OF HOOPER V. UNITED STATES, 53 CT.CLS. 90, A CASE INVOLVING A PECULIAR AND UNUSUAL CHAIN OF CIRCUMSTANCES, THE COURT MADE SOME OBSERVATIONS ON THE REQUIREMENTS OF SECTION 1493, REVISED STATUTES, WHICH SEEM TO ACCORD WITH THE VIEW THERETOFORE EXPRESSED BY THE COMPTROLLER OF THE TREASURY IN THE DOWNES CASE AND TO BE CONTRARY TO ITS OWN OPINION IN THE DOWNES CASE. THE COURT SAID:

IF HE WAS PHYSICALLY UNFIT, AND THE PRESIDENT FOR THAT REASON SUSPENDED FOR A PERIOD OF ONE YEAR THE FINDINGS AND RECOMMENDATIONS OF THE BOARDS, AND DIRECTED HIM TO BE EXAMINED AGAIN AT THE END OF THAT PERIOD, THEN THE PLAINTIFF COULD NOT HAVE BEEN PROMOTED IN PURSUANCE OF LAW AT THE TIME HE WAS EXAMINED, NOR UNTIL HE BECAME PHYSICALLY QUALIFIED, SECTION 1493 OF THE REVISED STATUTES PROVIDING * * *.

THERE WERE THREE CONCURRING OPINIONS IN THE HOOPER CASE, JUDGE DOWNEY SAYING:

* * * AND THIS CASE IS CERTAINLY NOT THE DOWNES CASE, A CASE WHICH WOULD BE SUBJECT TO SERIOUS CRITICISM IF IT ASSUMED TO ESTABLISH THE RULE THAT A PROMOTION TO A HIGHER GRADE IN VIOLATION OF SECTION 1493 WAS AN ADVANCEMENT IN GRADE OR RANK PURSUANT TO LAW. THAT CASE WAS PECULIARLY A CASE UNTO ITSELF * * *.

IN JUDGE BARNEY'S REMARKS IS FOUND THE FOLLOWING:

WHILE THIS COURT DECIDED THAT SECTION 1505 OF THE REVISED STATUTES AS AMENDED ACTUALLY SUSPENDED THE CANDIDATE FOR PROMOTION FOR THE PERIOD OF SIX MONTHS, SECTION 1493, IT WILL BE SEEN, SUSPENDS HIM FROM PROMOTION AUTOMATICALLY DURING THE PERIOD THAT HE IS NOT QUALIFIED FOR SERVICE AT SEA, WHICH, OF COURSE, IS DURING THE TIME HE IS PHYSICALLY DISQUALIFIED FOR PROMOTION * * *.

THE FOLLOWING IS QUOTED FROM CHIEF JUSTICE CAMPBELL'S CONCURRING OPINION:

* * * A NOTICEABLE DIFFERENCE BETWEEN SECTION 1493, REFERRING TO PHYSICAL DISABILITIES, AND SECTION 1505 AS AMENDED, REFERRING TO PROFESSIONAL DISQUALIFICATIONS, IS THAT WHERE AN OFFICER FAILS TO QUALIFY PROFESSIONALLY IT IS REQUIRED THAT HE SHALL BE SUSPENDED FOR A PERIOD OF SIX MONTHS AND LOSE CERTAIN NUMBERS, WHEN HE MAY BE AGAIN EXAMINED, WHEREAS THE STATUTE REQUIRING PHYSICAL EXAMINATION DOES NOT SPECIFICALLY DIRECT THE COURSE TO BE TAKEN UPON HIS FAILURE TO QUALIFY THEREIN. IT IS, HOWEVER, PROVIDED BY SECTION 1447 AND SECTION 1448 THAT OFFICERS MAY BE PLACED ON THE RETIRED LIST UNDER CERTAIN CONDITIONS WHO HAVE FAILED IN THEIR EXAMINATIONS FOR PROMOTION. SECTION 1505 AS AMENDED REQUIRES THAT THE OFFICER BE DROPPED FROM THE SERVICE UPON HIS FAILURE THE SECOND TIME IN HIS PROFESSIONAL EXAMINATION, BUT SECTION 1493 DOES NOT IN TERMS, AT LEAST, PROVIDE FOR DROPPING THE OFFICER FROM THE SERVICE, AND THE OTHER STATUTES MENTIONED SEEM TO AUTHORIZE HIS RETENTION IN THE GRADE TO WHICH HE IS ATTACHED UNTIL ACTION BY A RETIRING BOARD IS HAD. THE ACTION OF THE RETIRING BOARD MUST BE SUBMITTED TO THE PRESIDENT FOR HIS APPROVAL OR DISAPPROVAL "OR ORDERS IN THE CASE.' SECTION 1452.

IN THE DOWNES CASE, 52 CT.CLS. 237, IT APPEARED THAT THERE WAS AN ADVERSE REPORT UPON HIS PHYSICAL EXAMINATION, BUT ALSO A RECOMMENDATION BY A MEDICAL BOARD THAT HE BE GIVEN TREATMENT. THE PRESIDENT APPROVED THE REPORT OF THE MEDICAL BOARD AND SUSPENDED ACTION ON THE OTHER REPORT AWAITING THE RESULT OF THE TREATMENT. WE REACHED THE CONCLUSION IN THAT CASE THAT THE ACTION OF THE PRESIDENT WAS NOT CONTRARY TO LAW, BECAUSE SECTION 1493 DOES NOT PRESCRIBE A COURSE TO BE TAKEN UPON AN ADVERSE REPORT BY THE EXAMINING BOARD UNTIL THE PRESIDENT SHALL HAVE APPROVED OR DISAPPROVED THE SAME. SECTION 1502, AS HAS BEEN STATED, REQUIRES A SUBMISSION TO THE PRESIDENT ALONG WITH THE REPORT OF THE BOARD OF THE FILES AND RECORDS OF THE NAVY DEPARTMENT BEARING ON THE CASE, AND MANIFESTLY THESE MAY BE CONSIDERED BY THE PRESIDENT IN TAKING ACTION UPON THE REPORT.

HAVING ANNOUNCED IN THE CRAPO CASE, 50 CT.CLS. 337, AND THE TOULON AND DOWNES CASES, SUPRA, THAT THE COURT HAD THE RIGHT, AND WOULD EXERCISE IT, TO EXAMINE INTO THE LEGALITY OF PROMOTION IT WAS PLAINLY IMPLIED, AND MAY NOW BE STATED AGAIN, THAT CASES BROUGHT UNDER THE PROVISIONS OF THE ACT OF MARCH 4, 1913, MUST LARGELY DEPEND UPON THE FACTS OF THE PARTICULAR CASE *

THE FACTS IN THE CASE OF WADSWORTH V. UNITED STATES, 55 CT.CLS. 383, WERE THAT THE OFFICER BECAME ELIGIBLE FOR PROMOTION FROM ENSIGN TO LIEUTENANT (JUNIOR GRADE) JANUARY 31, 1910; WAS EXAMINED FOR PROMOTION AND FOUND NOT PHYSICALLY QUALIFIED NOVEMBER 12, 1910. THE MEDICAL BOARD RECOMMENDED THAT HE BE FURTHER EXAMINED IN THREE MONTHS. THIS RECOMMENDATION HAVING BEEN APPROVED, HE WAS REEXAMINED MARCH 27, 1911; WAS FOUND PHYSICALLY QUALIFIED, AND PROMOTED WITH DATE OF RANK FROM JANUARY 31, 1910, 15 MONTHS PRIOR THERETO. BY A PER CURIAM DECISION THE COURT GAVE JUDGMENT FOR THE DIFFERENCE IN PAY FROM DATE OF ELIGIBILITY FOR PROMOTION, JANUARY 31, 1910, TO THE DATE WHEN HE WAS PAID AS A LIEUTENANT (JUNIOR GRADE) AFTER ACTUAL APPOINTMENT. THE COURT, AFTER CALLING ATTENTION TO THE FACT THAT THE MEDICAL BOARD RECOMMENDED A FURTHER EXAMINATION, AID:

AND THE ACTION SUBSEQUENTLY TAKEN CONFIRMS THE VIEW THAT IT WAS THE INTENTION TO FURTHER EXAMINE THE OFFICER BEFORE PASSING DEFINITELY ON THE QUESTION OF PHYSICAL FITNESS FOR PROMOTION. HE WAS REEXAMINED, PASSED HIS EXAMINATION SUCCESSFULLY, AND WAS PROMOTED. THE CASE IS MORE ANALOGOUS TO THAT OF DOWNES, 52 CT.CLS. 237, 242, THAN THAT OF HOOPER, 53 CT.CLS. 90.

IN 24 COMP. DEC. 639, IS THE CASE OF AN OFFICER WHO FAILED PHYSICALLY THREE TIMES, WITH RECOMMENDATIONS FOR FURTHER EXAMINATION. ON THE FOURTH EXAMINATION THE BOARD FOUND HIM NOT PHYSICALLY QUALIFIED. HE WAS ORDERED BEFORE A RETIRING BOARD; THAT BOARD RECOMMENDED A COURSE OF TREATMENT AND FURTHER EXAMINATION, AND ON A SUBSEQUENT EXAMINATION THE OFFICER WAS FOUND PHYSICALLY QUALIFIED TO PERFORM ALL HIS DUTIES AT SEA AND WAS PROMOTED WITH DATE OF RANK RETROACTIVE TO THE DATE OF ELIGIBILITY. THE COMPTROLLER OF THE TREASURY DISALLOWED THE CLAIM FOR THE DIFFERENCE IN PAY FOR THE PERIOD PRIOR TO PASSING THE PHYSICAL EXAMINATION, CITING IN SUPPORT THE CASE OF HOOPER V. UNITED STATES.

THE RULE DEDUCIBLE FROM THESE CASES IS NOT CLEAR. (1) EACH CASE IS DEPENDENT UPON ITS FACTS, OR (2) ONE CASE IS MORE ANALOGOUS TO THE DOWNES CASE THAN TO THE HOOPER CASE. IT IS HARD TO BELIEVE THAT THE INCLUSION BY THE FIRST AND SUCCEEDING MEDICAL BOARDS OF A RECOMMENDATION FOR MEDICAL TREATMENT AND SUBSEQUENT REEXAMINATION IS CONTROLLING. UNDER THE STATUTE THE MEDICAL BOARD'S DUTY IS TO REPORT ON THE OFFICER'S PHYSICAL CONDITION, AND ALTHOUGH ITS RECOMMENDATION IS ASKED IN DEPARTMENTAL REGULATIONS, UNDER THE STATUTE SUCH A RECOMMENDATION IS GRATUITOUS. THE STATUTE CONTEMPLATES IT WILL EITHER FIND THE OFFICER PHYSICALLY QUALIFIED OR NOT PHYSICALLY QUALIFIED, AND THAT ACTION THEREON WILL BE WITH RESPECT TO ITS FINDINGS. THE DIFFICULTY, INDEED THE IMPOSSIBILITY, OF FOLLOWING THE COURT IN THESE CASES IS APPARENT; IF EACH CASE IS TO BE DETERMINED ON ITS OWN PECULIAR FACTS WITHOUT RULES FOR GUIDANCE, THE DETERMINATION MUST BE IN EACH CASE BY THE COURT. THE OFFICER'S TITLE TO OFFICE AND RIGHT TO FUTURE PROMOTION BASED ON SENIORITY CAN NOT DEPEND ON AN ASCERTAINMENT BY THE COURT AFTER YEARS OF SERVICE UNDER A COMMISSION THAT POSSIBLY MAY BE HELD ILLEGAL.

THE ACT OF MARCH 4, 1913, 37 STAT. 892, PROVIDES:

THAT ALL OFFICERS OF THE NAVY * * * ADVANCED IN GRADE OR RANK PURSUANT TO LAW SHALL BE ALLOWED THE PAY AND ALLOWANCES OF THE HIGHER GRADE OR RANK FROM THE DATE STATED IN THEIR COMMISSIONS.

THE ACT OF JUNE 22, 1874, 18 STAT. 191, PROVIDED:

THAT ON AND AFTER THE PASSAGE OF THIS ACT, ANY OFFICER OF THE NAVY WHO MAY BE PROMOTED IN COURSE TO FILL A VACANCY IN THE NEXT HIGHER GRADE SHALL BE ENTITLED TO THE PAY OF THE GRADE TO WHICH PROMOTED FROM THE DATE HE TAKES RANK THEREIN, IF IT BE SUBSEQUENT TO THE VACANCY HE IS APPOINTED TO FILL. THE PURPOSE OF THE ACT OF MARCH 4, 1913 (SEE 22 COMP. DEC. 594), WAS TO EXTEND BENEFITS, THE EQUIVALENT OF THE ACT OF JUNE 22, 1874, TO OFFICERS OF THE NAVY NOT PROMOTED BY SENIORITY (OR IN COURSE); THAT IS, WHO ARE PROMOTED AFTER THE SERVICES REQUIRED BY STATUTE FOR PROMOTION, SUCH AS ENSIGNS OF THE LINE AFTER THREE YEARS' SERVICE TO THE GRADE OF LIEUTENANT (JUNIOR GRADE), AND MEDICAL OFFICERS AFTER THREE YEARS' SERVICE AS LIEUTENANT (JUNIOR GRADE) TO THE GRADE OF LIEUTENANT. THE ACT ESTABLISHES NO NEW RIGHTS FOR OFFICERS WHO ARE PROMOTED "IN COURSE" TO FILL A VACANCY IN THE NEXT HIGHER GRADE. IT IS EVIDENT, THEREFORE, THAT SO FAR AS THE ACT OF MARCH 4, 1913, IS CONCERNED THE PROMOTION OF STEVENSON HERE IN QUESTION, WHICH WAS "IN COURSE" AND TO FILL A VACANCY EXISTING IN THE NEXT HIGHER GRADE, WAS MADE PURSUANT TO LAW UNLESS THE OFFICER'S INABILITY TO PASS THE FIRST PHYSICAL EXAMINATION FORFEITED HIS RIGHT TO THE VACANCY AND GAVE TO SOME OFFICER JUNIOR TO HIM A RIGHT TO THE VACANCY. IT MAY BE SAID THAT THE NAVY DEPARTMENT BY ITS ACTION RECOGNIZED THE RIGHT OF THE OFFICER TO THE VACANCY, AND, SO FAR AS THIS OFFICE IS INFORMED, NO JUNIOR OFFICER HAS ASSERTED A RIGHT TO THE PROMOTION. WILL BE PROPER TO CONSIDER WHAT ARE THE OFFICER'S RIGHTS IN CASE OF INABILITY TO PASS THE FIRST PHYSICAL EXAMINATION FOR PROMOTION AND IS ACCORDED SUBSEQUENT EXAMINATIONS, EVENTUALLY QUALIFYING.

SECTION 1493, REVISED STATUTES, PROVIDES:

NO OFFICER SHALL BE PROMOTED TO A HIGHER GRADE ON THE ACTIVE LIST OF THE NAVY, EXCEPT IN THE CASE PROVIDED IN THE NEXT SECTION, UNTIL HE HAS BEEN EXAMINED BY A BOARD OF NAVAL SURGEONS AND PRONOUNCED PHYSICALLY QUALIFIED TO PERFORM ALL HIS DUTIES AT SEA.

THE SUCCEEDING SECTION MAKES AN EXCEPTION IN CASE OF OFFICERS PHYSICALLY DISQUALIFIED BY WOUNDS RECEIVED IN THE LINE OF DUTY, BUT WHICH DO NOT INCAPACITATE THE OFFICER FOR OTHER DUTIES IN THE GRADE TO WHICH HE IS ELIGIBLE FOR PROMOTION. IT IS APPARENT THAT BECAUSE OF THE REQUIREMENTS OF SECTION 1493, REVISED STATUTES, REPEATED EXAMINATIONS WERE NECESSARY. THE TERMS OF THAT STATUTE PROHIBITED HIS PROMOTION SO LONG AS THE MEDICAL BOARD FOUND HIM NOT PHYSICALLY QUALIFIED TO PERFORM ALL OF HIS DUTIES AT SEA. AND THE QUESTION ARISES, WHAT WAS THE ALTERNATIVE TO PROMOTION WHEN HE WAS FOUND PHYSICALLY DISQUALIFIED ON THE FIRST EXAMINATION?

SECTION 1447, REVISED STATUTES, PROVIDES:

WHEN THE CASE OF ANY OFFICER HAS BEEN ACTED UPON BY A BOARD OF NAVAL SURGEONS AND AN EXAMINING BOARD FOR PROMOTION, AS PROVIDED IN CHAPTER FOUR OF THIS TITLE, AND HE SHALL NOT HAVE BEEN RECOMMENDED FOR PROMOTION BY BOTH OF THE SAID BOARDS, HE SHALL BE PLACED UPON THE RETIRED LIST.

UNDER THE ACT OF MARCH 4, 1911, 36 STAT. 1267, WHERE THE PHYSICAL DISABILITY FOUND ON EXAMINATION FOR PROMOTION WAS "CONTRACTED IN THE LINE OF DUTY," THE ACT DIRECTS THAT "HE SHALL BE RETIRED WITH THE RANK TO WHICH HIS SENIORITY ENTITLED HIM TO BE PROMOTED.' THUS, ALTHOUGH NOT PHYSICALLY QUALIFIED FOR PROMOTION ON THE ACTIVE LIST, IS HE TO BE PLACED ON THE RETIRED LIST IN THE ADVANCE RANK, AND THIS FOR A TEMPORARY PHYSICAL DISQUALIFICATION? IN VIEW OF THE PROVISIONS OF SECTIONS 1448 TO 1456, REVISED STATUTES, THE ACTION OF THE EXAMINING BOARD FOR PROMOTION IS NOT A WARRANT FOR RETIREMENT. THE OFFICER MUST APPEAR BEFORE A RETIRING BOARD BEFORE HE CAN BE RETIRED FOR PHYSICAL DISABILITY.

SECTION 1451, REVISED STATUTES, PROVIDES:

WHEN SAID RETIRING-BOARD FINDS AN OFFICER INCAPACITATED FOR ACTIVE SERVICE, IT SHALL ALSO FIND AND REPORT THE CAUSE WHICH, IN ITS JUDGMENT, PRODUCED HIS INCAPACITY, AND WHETHER SUCH CAUSE IS AN INCIDENT OF THE SERVICE.

SECTION 1453 PROVIDES WHEN A RETIRING BOARD FINDS AN OFFICER INCAPACITATED FOR ACTIVE SERVICE AND THE INCAPACITY IS A RESULT OF AN INCIDENT OF THE SERVICE, THE OFFICER SHALL, IF THE DECISION IS APPROVED BY THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE WITH RETIRED PAY AT THREE- FOURTHS OF THE PAY OF THE RANK UPON WHICH RETIRED, AND SECTION 1454 PROVIDES THAT WHERE THE BOARD FINDS THE INCAPACITY FOR ACTIVE SERVICE IS NOT THE RESULT OF AN INCIDENT OF THE SERVICE THE OFFICER SHALL, IF THE DECISION IS APPROVED BY THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE WITH FURLOUGH PAY, OR WHOLLY RETIRED WITH ONE YEAR'S PAY, AS THE PRESIDENT MAY DIRECT. A RETIRING BOARD MUST, THEREFORE, FIND THE OFFICER INCAPACITATED FOR ACTIVE SERVICE. WHERE IT FINDS AN OFFICER SUFFERING FROM A TEMPORARY DISABILITY, OR ONE APPARENTLY TEMPORARY, IT CAN NOT FIND THAT HE IS INCAPACITATED FOR ACTIVE SERVICE. THE OFFICER'S SITUATION IS THUS A DIFFICULT ONE. HE CAN NOT, BECAUSE OF SECTION 1493, BE PROMOTED, AND HE CAN NOT, BECAUSE OF THE REQUIREMENTS OF LAW JUST ADVERTED TO, BE RETIRED. THIS WAS THE SITUATION OF THE OFFICER WHOSE CASE WAS CONSIDERED BY THE COMPTROLLER OF THE TREASURY IN 24 COMP. DEC. 639. THE ONLY ALTERNATIVE IS TO DEFER FURTHER EXAMINATION FOR PROMOTION AND DIRECT MEDICAL TREATMENT FOR THE REMOVAL OF THE DISABILITY. THIS IS THE UNIFORM, THE PROPER, AND THE ONLY LEGAL METHOD. BUT DOES THE OFFICER FORFEIT HIS RIGHT TO PROMOTION TO THE VACANCY WHICH REQUIRED HIS EXAMINATION BECAUSE OF A TEMPORARY DISABILITY? WERE IT PERMANENT AND THE RESULT OF AN INCIDENT OF THE SERVICE HE WOULD BE ENTITLED TO RETIREMENT IN THE ADVANCE GRADE. THE ACT OF 1911 AND SECTION 1494 INDICATE THAT AN OFFICER SHOULD NOT BE PENALIZED FOR A DISABILITY THE RESULT OF AN INCIDENT OF THE SERVICE, YET UNDER THE HOLDINGS OF THE COMPTROLLER OF THE TREASURY AND THE REMARKS OF THE COURT OF CLAIMS IN THE HOOPER CASE, IF HE DOES NOT COME WITHIN THE PROVISIONS OF THE STATUTE FOR RETIREMENT THAT IS THE RESULT.

IT IS APPARENT THAT ONE OF THE PURPOSES OF THE ACT OF JUNE 22, 1874, WAS TO PROVIDE FOR THIS PRECISE SITUATION. THE OFFICER HAD BEEN PROMOTED IN COURSE TO FILL A VACANCY, AND THAT ACT GIVES HIM PAY FROM THE DATE HE TAKES RANK THEREIN IF IT BE SUBSEQUENT TO THE VACANCY HE IS APPOINTED TO FILL. IF THE PURPOSE OF THE ACT OF MARCH 4, 1913, WAS (AND IT IS APPARENT THAT IT WAS) TO EXTEND TO ALL OFFICERS THE SAME BENEFITS AS WERE ACCORDED TO SOME OF THE OFFICERS OF THE NAVY BY THE ACT OF 1874 AND TO PLACE ALL OFFICERS ON A UNIFORM BASIS, THE PROPER CONSTRUCTION TO BE GIVEN THE ACT OF 1913 IS OBVIOUS. IT ACCOMPLISHES THE SAME PURPOSE BY A DIFFERENT PHRASEOLOGY. AS SAID BY THE COURT OF CLAIMS, IT IS NOT CONTEMPLATED BY THAT LAW THAT A DATE OF RANK WILL BE STATED THAT IS NOT WARRANTED BY THE STATUTES PROVIDING FOR PROMOTION BUT, AS HAS BEEN SHOWN, WHERE THE CORRECT DATE IS STATED, AND THAT IS TRUE IN THIS CASE, THE OFFICER IS ENTITLED TO THE PAY OF THE HIGHER GRADE FROM THE DATE SO STATED.

LATER STATUTES APPLICABLE IN THIS CASE CONFIRM THE VIEWS HEREIN EXPRESSED. BY THE ACT OF AUGUST 29, 1916, 39 STAT. 578, ET SEQ., PROMOTION BY SELECTION FOR LINE OFFICERS TO THE GRADES OF COMMANDER, CAPTAIN, AND REAR ADMIRAL WAS PROVIDED, AND THIS LAW WAS EXTENDED TO OFFICERS OF THE STAFF CORPS BY THE ACT OF JULY 1, 1918, 40 STAT. 718. THE OFFICER IN THIS CASE WAS A CHAPLAIN WITH THE RANK OF COMMANDER. HE HAD BEEN SELECTED FOR PROMOTION AND HAD A RIGHT TO THE VACANCY CREATED BY THE DEATH OF CAPT. W. G. CASSARD, CH.C. THE ACT OF AUGUST 29, 1916, PROVIDES:

* * * WHEN THE REPORT OF THE BOARD SHALL HAVE BEEN APPROVED BY THE PRESIDENT, THE OFFICERS RECOMMENDED THEREIN SHALL BE DEEMED ELIGIBLE FOR SELECTION, AND IF PROMOTED SHALL TAKE RANK WITH ONE ANOTHER IN ACCORDANCE WITH THEIR SENIORITY IN THE GRADE FROM WHICH PROMOTED: PROVIDED, THAT ANY OFFICERS SO SELECTED SHALL PRIOR TO PROMOTION BE SUBJECT IN ALL RESPECTS TO THE EXAMINATIONS PRESCRIBED BY LAW FOR OFFICERS PROMOTED BY SENIORITY, AND IN CASE OF FAILURE TO PASS THE REQUIRED PROFESSIONAL EXAMINATION SUCH OFFICER SHALL THEREAFTER BE INELIGIBLE FOR SELECTION AND PROMOTION. AND SHOULD ANY SUCH OFFICER FAIL TO PASS THE REQUIRED PHYSICAL EXAMINATION HE SHALL NOT BE CONSIDERED, IN THE EVENT OF RETIREMENT, ENTITLED TO THE RANK OF THE NEXT HIGHER GRADE.

THE CLAUSE "IN THE EVENT OF RETIREMENT" IN THE LAST SENTENCE IS TO BE NOTICED. THE OFFICER IN SUCH CASE CAN NOT BE PROMOTED BECAUSE HE IS FOUND NOT PHYSICALLY QUALIFIED. AND IN THE EVENT OF RETIREMENT HE SHALL NOT BE ENTITLED TO THE RANK OF THE NEXT HIGHER GRADE. THE STATUTE CLEARLY CONTEMPLATES SOME ACTION, FOR THE OFFICERS UNDER ITS VERY TERMS ARE ENTITLED ON PROMOTION TO "TAKE RANK WITH ONE ANOTHER IN ACCORDANCE WITH THEIR SENIORITY IN THE GRADE FROM WHICH PROMOTED.' IF THE OFFICER IS NOT PHYSICALLY QUALIFIED AND THE RETIRING BOARD CAN RECOMMEND HIM FOR RETIREMENT, THAT ACTION IS CONTEMPLATED, BUT "IN THE EVENT" THAT A RETIRING BOARD CAN NOT RECOMMEND HIS RETIREMENT FROM ACTIVE SERVICE BECAUSE THE DISABILITY IS, OR IS BELIEVED TO BE, TEMPORARY, HE IS ENTITLED TO FURTHER EXAMINATION BY THE MEDICAL EXAMINING BOARD AND IF EVENTUALLY FOUND PHYSICALLY QUALIFIED HE IS ENTITLED TO TAKE RANK IN ACCORDANCE WITH HIS SENIORITY IN THE GRADE FROM WHICH PROMOTED. CLEARLY THE PRACTICE OF THE DEPARTMENT, NECESSITATED BY THE PROVISIONS OF LAW HEREIN CITED, WAS KNOWN TO AND CONSIDERED BY THE CONGRESS IN THIS LEGISLATION OF 1916.

DECISIONS OF THE FORMER ACCOUNTING OFFICERS SO FAR AS INCONSISTENT WITH THE CONCLUSION HEREIN REACHED WILL NOT BE HEREAFTER FOLLOWED. ON REVIEW THE SETTLEMENT IS MODIFIED AND ALLOWANCE WILL BE MADE OF THE PAY OF A CAPTAIN FROM JUNE 30, 1919, THE DATE OF RANK STATED IN CAPTAIN STEVENSON'S COMMISSION, HE HAVING BEEN PROMOTED PURSUANT TO LAW.