A-8669, MAY 21, 1925, 4 COMP. GEN. 961

A-8669: May 21, 1925

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WHOSE EXAMINATION IS DELAYED THROUGH NO FAULT OF HIS OWN. IS NOT FOUND QUALIFIED PROFESSIONALLY. IS SUSPENDED FROM PROMOTION FOR SIX MONTHS UNDER SECTION 1505. ON HIS SECOND EXAMINATION IS FOUND PROFESSIONALLY QUALIFIED. HE IS ENTITLED TO PAY OF THE HIGHER GRADE FROM THE DATE STATED IN HIS COMMISSION. IF SUCH DATE IS NOT PRIOR TO SIX MONTHS AFTER THE DATE OF HIS ORIGINAL ELIGIBILITY FOR PROMOTION. ON THE GROUND THAT HE WAS NOT ENTITLED TO THE PAY OF A LIEUTENANT (JUNIOR GRADE) PRIOR TO JANUARY 22. WAS SUSPENDED FROM PROMOTION FOR A PERIOD OF SIX MONTHS ON JUNE 4. HE WAS AGAIN EXAMINED PROFESSIONALLY ON JANUARY 22. AS A RESULT OF HIS PROFESSIONAL FAILURE AND SUSPENSION FROM PROMOTION HE WAS GIVEN RANK AS LIEUTENANT (JUNIOR GRADE) TO DATE FROM JUNE 30.

A-8669, MAY 21, 1925, 4 COMP. GEN. 961

NAVY PAY - PROMOTION - PRIOR FAILURE ON PROFESSIONAL EXAMINATION WHERE AN ENSIGN ELIGIBLE FOR PROMOTION TO LIEUTENANT (JUNIOR GRADE) AFTER THREE YEARS' SERVICE, WHOSE EXAMINATION IS DELAYED THROUGH NO FAULT OF HIS OWN, IS NOT FOUND QUALIFIED PROFESSIONALLY, IS SUSPENDED FROM PROMOTION FOR SIX MONTHS UNDER SECTION 1505, REVISED STATUTES, AS AMENDED, AND ON HIS SECOND EXAMINATION IS FOUND PROFESSIONALLY QUALIFIED, HE IS ENTITLED TO PAY OF THE HIGHER GRADE FROM THE DATE STATED IN HIS COMMISSION, IF SUCH DATE IS NOT PRIOR TO SIX MONTHS AFTER THE DATE OF HIS ORIGINAL ELIGIBILITY FOR PROMOTION. THE GENERAL ACCOUNTING OFFICE HAS THE SAME JURISDICTION AS THE COURTS TO INQUIRE WHETHER THERE HAS BEEN COMPLIANCE WITH SUBSTANTIVE LAW REGULATING THE CREATION OF A STATUS ENTITLING AN OFFICER OF THE NAVY TO PAY AND ALLOWANCES.

DECISION BY ACTING COMPTROLLER GENERAL GINN, MAY 21, 1925:

FRANK W. RASCH, LIEUTENANT, UNITED STATES NAVY, REQUESTS REVIEW OF SETTLEMENT 034240, DATED JANUARY 9, 1925, OF HIS CLAIM FOR DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF ENSIGN AND LIEUTENANT (JUNIOR GRADE), UNITED STATES NAVY, FROM JUNE 30, 1922, TO MARCH 23, 1923, DUE TO PROMOTION FROM ENSIGN TO LIEUTENANT (JUNIOR GRADE) TO RANK FROM JUNE 30, 1922. THE SETTLEMENT DISALLOWED THE CLAIM AND CHARGED CLAIMANT WITH SUCH DIFFERENCE OF PAY RECEIVED BY HIM FROM MARCH 24, 1923, TO JANUARY 21, 1924, ON THE GROUND THAT HE WAS NOT ENTITLED TO THE PAY OF A LIEUTENANT (JUNIOR GRADE) PRIOR TO JANUARY 22, 1924, DATE HE QUALIFIED FOR PROMOTION BY PASSING THE REQUIRED EXAMINATION.

THE RECORDS SHOW THAT LIEUTENANT (JUNIOR GRADE) FRANK W. RASCH FAILED ON HIS FIRST PROFESSIONAL EXAMINATION ON APRIL 30, 1923, AND WAS SUSPENDED FROM PROMOTION FOR A PERIOD OF SIX MONTHS ON JUNE 4, 1923, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 1505, REVISED STATUTES, AS AMENDED BY THE ACT OF MARCH 11, 1912. HE WAS AGAIN EXAMINED PROFESSIONALLY ON JANUARY 22, 1924, AND QUALIFIED. HE QUALIFIED PHYSICALLY AS REQUIRED BY SECTION 1493, REVISED STATUTES, ON BOTH OF THESE EXAMINATIONS. HE COMPLETED THREE YEARS' COMMISSIONED SERVICE ON DECEMBER 31, 1921, AND AS A RESULT OF HIS PROFESSIONAL FAILURE AND SUSPENSION FROM PROMOTION HE WAS GIVEN RANK AS LIEUTENANT (JUNIOR GRADE) TO DATE FROM JUNE 30, 1922.

IN THE CASE OF OFFICERS OF THE NAVY ELIGIBLE FOR PROMOTION BY LENGTH OF SERVICE ONLY AND WHO ON THEIR FIRST EXAMINATION FOR PROMOTION FAIL PROFESSIONALLY AND ARE SUSPENDED FROM PROMOTION PURSUANT TO SECTION 1505, REVISED STATUTES, AS AMENDED BY THE ACT OF MARCH 11, 1912, 37 STAT. 73, THERE HAS BEEN A DIVERSITY OF OPINION AS TO WHEN THE OFFICER IS ENTITLED TO PAY IN THE HIGHER RANK WHEN AFTER THE SUSPENSION HE PASSES THE REQUIRED EXAMINATION. THE EXTREME VIEW IS THAT UNDER THE TERMS OF THE ACT OF MARCH 4, 1913, 37 STAT. 892, THE ONLY QUESTION FOR ASCERTAINMENT BY THE ACCOUNTING OFFICERS IS THE DATE STATED IN THE OFFICER'S COMMISSION. THE ACT OF 1913, CITED, PROVIDES:

THAT ALL OFFICERS OF THE NAVY WHO, SINCE THE THIRD DAY OF MARCH, EIGHTEEN HUNDRED AND NINETY-NINE, HAVE BEEN ADVANCED OR MAY HEREAFTER BE ADVANCED IN GRADE OR RANK PURSUANT TO LAW SHALL BE ALLOWED THE PAY AND ALLOWANCES OF THE HIGHER GRADE OR RANK FROM THE DATES STATED IN THEIR COMMISSIONS.

THIS VIEW FINDS SOME SUPPORT IN THE CASE OF SMITH V. UNITED STATES, 50 CT.CLS. 244, WHERE THE COURT, SPEAKING BY JUDGE BARNEY AND REFERRING TO THE PROVISIONS OF SECTION 1562, REVISED STATUTES, AND THE ACT OF MARCH 4, 1913, SAYS:

* * * THESE PROVISIONS OF THE LAW ARE SO ABSOLUTELY INCONSISTENT THAT THEY CAN NOT BOTH STAND AND BE CONSTRUED IN PARI MATERIA, AND THE ONE LAST ENACTED MUST STAND AS THE LAW.

IF THE LATTER ACT MEANS ANYTHING IT WAS INTENDED BY CONGRESS THEREBY TO CONFER UPON THE APPOINTING POWER THE RIGHT TO NAME THE DATE FROM WHICH AN OFFICER ADVANCED IN GRADE OR RANK SHOULD TAKE SUCH GRADE OR RANK * * * THIS IS THE PLAIN LANGUAGE OF THE LAW, AND WE SEE NO REASON FOR GOING AFIELD TO GIVE IT ANY STRAINED CONSTRUCTION EVEN IF WE WERE ALLOWED THAT PRIVILEGE.

ITS JUDGMENT IN THAT CASE SEEMS TO BE IN ACCORD WITH THE VIEW THUS EXPRESSED, THE COURT ADDING, HOWEVER, THAT THE NAVY DEPARTMENT'S DETERMINATION OF THE DATE STATED IN THE COMMISSION "WAS BUT DOING HIM JUSTICE.'

IN THE CASE OF CRAPO V. UNITED STATES, 50 CT.CLS. 337, THE COURT, SPEAKING BY JUDGE BOOTH, AYS:

WE ARE NOT CALLED UPON IN THE FACE OF THE RECORD TO DETERMINE WHETHER THE CLAIMANT WOULD BE ENTITLED TO THE BENEFITS OF THE ACT OF MARCH 4, 1913, IF THERE HAD BEEN NO VACANCY TO WHICH HE COULD HAVE BEEN ADVANCED, BECAUSE IN OUR VIEW OF THE CASE THERE WAS A VACANCY IN THE RANK AND GRADE TO WHICH HE WAS ADVANCED * * * THE CLAIMANT HAVING BEEN APPOINTED IN PURSUANCE OF LAW TO THE OFFICE FOR WHICH HE WAS COMMISSIONED, IT FOLLOWS THAT UNDER THE ACT OF MARCH 4, 1913, HE IS ENTITLED TO THE PAY AND ALLOWANCES OF THE SAME FROM THE DATE STATED IN HIS COMMISSION.

THE SMITH CASE WAS DECIDED APRIL 19, 1915, AND THE CRAPO CASE MAY 24, 1915, BUT IN THAT SHORT PERIOD IT WILL BE OBSERVED THE COURT, NOTWITHSTANDING ITS BROAD LANGUAGE IN THE SMITH CASE, DETERMINES IN THE CRAPO CASE THAT THE APPOINTMENT WAS "IN PURSUANCE OF LAW," AND BECAUSE OF THAT FACT THE ACT OF MARCH 4, 1913, ENTITLED THE PETITIONER TO PAY FROM THE DATE STATED IN THE COMMISSION.

IN TOULON V. UNITED STATES, 51 CT.CLS. 87, THE COURT FURTHER RESTRICTED ITS LANGUAGE IN THE SMITH CASE, AND BY CHIEF JUSTICE CAMPBELL SAID:

IT MAY BE URGED WITH CONSIDERABLE FORCE THAT WHERE THERE HAS BEEN AN ADVANCEMENT IN GRADE OR RANK AT ALL, IF AT THAT TIME ANY ADVANCEMENT COULD BE MADE, IT SHOULD, UNDER THE TERMS OF THE STATUTE, BE HELD THAT HE HAS BEEN ADVANCED "PURSUANT TO LAW," AND THEREFORE THAT HE IS ENTITLED TO BE PAID FROM THE DATE STATED IN HIS COMMISSION, BECAUSE THE STATUTE SO SAYS. BUT THIS WOULD LEAD TO A TOO LITERAL VIEW OF THE ACT. THE DATE WHICH THE STATUTE CONTEMPLATES WOULD BE STATED IN THE COMMISSION IS THAT UPON WHICH THE OFFICER BECOMES ELIGIBLE TO PROMOTION, BECAUSE THE STATUTE REGULATES THE PAY DURING THE PERIOD OF CONSTRUCTIVE SERVICE, AND THEREFORE THE COURT'S ATTENTION MUST BE DIRECTED TO THE DATE WHEN SUCH CONSTRUCTIVE SERVICE CAN BEGIN PURSUANT TO LAW. IT IS TRUE THAT THE ASCERTAINMENT OF THAT DATE IS CONFIDED IN THE FIRST INSTANCE TO THE APPOINTING POWER. THE LANGUAGE OF THE COURT IN SMITH'S CASE, 50 C.CLS. 244, 249, THAT "IT WAS INTENDED BY CONGRESS THEREBY TO CONFER UPON THE APPOINTING POWER THE RIGHT TO NAME THE DATE FROM WHICH AN OFFICER ADVANCED IN GRADE OR RANK SHOULD TAKE SUCH GRADE OR RANK AND TO RECEIVE PAY AND ALLOWANCES ACCORDINGLY" IMPLIES, AS A MATTER OF COURSE, THAT IN SO NAMING THE DATE POSITIVE LAW IS NOT IGNORED. "THE LAW FIXES THE OFFICER'S STATUS.' CRAPO'S CASE, 50 C.CLS. 342. "ALL THE OFFICERS OF THE GOVERNMENT FROM THE HIGHEST TO THE LOWEST ARE CREATURES OF THE LAW, AND ARE BOUND TO OBEY IT," PER MR. JUSTICE MILLER, IN KAUFMAN V. LEE, 106 U.S. 196, 220. WE WOULD NOT HESITATE TO SAY THAT THE ADVANCEMENT IN GRADE OR RANK OF AN ASSISTANT SURGEON WITHIN THE PRESCRIBED THREE YEARS' SERVICE WOULD NOT BE AN ADVANCEMENT PURSUANT TO LAW WITHIN THE TERMS OF THE ACT OF 1913, UNLESS IT WERE FOR SOME EXCEPTIONAL CAUSE AUTHORIZED BY LAW. AND FOR THE LIKE REASON WE CAN NOT SAY THAT AN ADVANCEMENT WITHIN THE SIX MONTHS OF SUSPENSION WOULD BE "PURSUANT TO LAW.' * * *.

IN DOWNES V. UNITED STATES, 52 CT.CLS. 237, THE COURT, SPEAKING BY CHIEF JUSTICE CAMPBELL, AND ADDRESSING ITSELF TO A CLAIM FROM DATE STATED IN THE COMMISSION SOLELY UNDER THE PROVISION OF THE ACT OF MARCH 4, 1913, SAYS:

* * * WE HAVE HAD OCCASION IN SEVERAL CASES TO CONSIDER THE EFFECT OF THAT ACT. SMITH CASE, 50 C.CLS. 244; CRAPO CASE, 50 C.CLS. 342; TOULON CASE, 51 C.CLS. 87. THERE IS NO INCONSISTENCY BETWEEN THESE CASES. THE COURT HAS NOT HELD, AND DOES NOT NOW HOLD, THAT SAID ACT AUTHORIZES THE FIXING OF A DATE IN THE COMMISSION FROM WHICH THE RANK BEGINS WHICH IS CONTROLLING ON THE COURT REGARDLESS OF WHETHER THE PROMOTION WAS MADE PURSUANT TO LAW OR NOT * * *.

* * * IN BOTH THE SMITH AND CRAPO CASES IT APPEARED THAT THE CLAIMANT WAS ELIGIBLE TO PROMOTION ON THE DATE STATED IN THE COMMISSION, AND EFFECT WAS GIVEN TO THE COMMISSION ACCORDINGLY. BUT IN THE TOULON CASE THE CLAIMANT WAS NOT ELIGIBLE TO PROMOTION ON THE DATE STATED IN THE COMMISSION, AND THE COURT REFUSED TO GIVE RECOGNITION TO THE ERRONEOUS DATE * * *.

IN THE CASE OF HOOPER V. UNITED STATES, 53 CT.CLS. 90, A CLAIM FOR PAY AND ALLOWANCES FROM DATE STATED IN THE COMMISSION, THE COURT, SPEAKING BY JUDGE HAY, SAYS, ON PAGE 94:

* * * THE QUESTION INVOLVED IS, WAS THE PLAINTIFF ADVANCED IN GRADE OR RANK "PURSUANT TO LAW?

AND ON PAGE 96:

* * * THE MERE FACT THAT HIS COMMISSION WAS DATED JUNE 27, 1915, CAN NOT CONTROL THE PAY AND ALLOWANCES TO BE RECEIVED BY HIM, FOR IF IT DID IT WOULD THEN BE IN THE POWER OF THE EXECUTIVE BRANCH OF THE GOVERNMENT TO NULLIFY AN ACT OF CONGRESS BY ARBITRARILY WRITING A DATE IN A COMMISSION, ALTHOUGH THAT COMMISSION WAS NOT ISSUED IN PURSUANCE OF LAW * * *.

THERE WERE THREE CONCURRING OPINIONS IN THIS CASE. THE FOLLOWING IS QUOTED FROM THAT OF CHIEF JUSTICE CAMPBELL, PAGE 106:

HAVING ANNOUNCED IN THE CRAPO CASE, 50 C.CLS. 337, AND THE TOULON AND DOWNES CASE, 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 EXTENSIVE QUOTATIONS FROM THE DECISIONS OF THE COURT OF CLAIMS IN CASES ARISING UNDER THE IDENTICAL PROVISION OF LAW HERE IN QUESTION HAVE SEEMED APPROPRIATE BECAUSE OF THE FREQUENT URGING THAT THE DETERMINATION OF THE STATUS OF AN OFFICER OF THE NAVY IS A FUNCTION OF THE SECRETARY OF THE NAVY WHICH IS NOT OPEN TO QUESTION BY THE ACCOUNTING OFFICERS. THE COURT OF CLAIMS, IT WILL BE OBSERVED, IS NOT BOUND BY THE FINDING OR ACTION OF THE SECRETARY OF THE NAVY IN THIS RESPECT. INDEED, IN THE HOOPER CASE COUNSEL FOR THE GOVERNMENT CONCEDED THE CORRECTNESS OF THE PETITIONER'S PROPOSED FINDINGS OF FACT, BUT REFERRED TO THE TREASURY REPORT ON FILE. THAT REPORT BEING ALL THE EVIDENCE IN THE CASE, THE FINDINGS OF FACT BY THE COURT WERE BASED THEREON WITH THE STATEMENT THAT THE ADMISSIONS OF COUNSEL ARE NOT CONTROLLING AND REACHED ITS CONCLUSION CONTRARY TO THE DETERMINATION OF THE SECRETARY OF THE NAVY. THE SECRETARY OF THE NAVY THEREAFTER ADDRESSED CERTAIN QUESTIONS TO THE COURT OF CLAIMS IN CONNECTION WITH THE CASE OF HOOPER WHICH THE COURT DECLINED TO ANSWER. SEE 53 CT.CLS. 370.

IF, THEREFORE, THE ACTION OF THE SECRETARY OF THE NAVY IN FIXING THE DATE IS CONCLUSIVE ON THE ACCOUNTING OFFICERS THERE ARE TWO BASES OF SETTLEMENT OF CLAIMS FOR PAY AND ALLOWANCES. ONE IN THE NAVY DEPARTMENT, EFFECT BEING GIVEN TO THE DEPARTMENT'S CONCLUSIONS BY SETTLEMENTS OF THE ACCOUNTING OFFICERS, AND THE OTHER IN THE COURTS, WHERE INDEPENDENT AND UNCONTROLLED DETERMINATIONS OF THE RIGHTS OF OFFICERS UNDER APPLICABLE LAWS ARE MADE. IF THIS IS A SOUND VIEW, FEW CASES REQUIRING THE COURT'S CONSIDERATION FOR THE PROTECTION OF THE GOVERNMENT WILL REACH THE COURT. ALL OF THE CASES CITED WERE FILED IN THE COURT OF CLAIMS AFTER ADVERSE ACTION BY THE ACCOUNTING OFFICERS; IN THE TOULON CASE THE ACCOUNTING OFFICERS WERE SUSTAINED IN PART, AND IN THE HOOPER CASE, WHICH WAS PRACTICALLY UNDEFENDED BY THE GOVERNMENT, THE ACCOUNTING OFFICERS WERE SUSTAINED ENTIRELY. IT WOULD THEREFORE SEEM TOO PLAIN FOR ARGUMENT THAT IF THE INTERESTS OF THE GOVERNMENT, AS WELL AS OF CLAIMANTS, ARE TO BE ADEQUATELY PROTECTED, WHATEVER INQUIRY IS PROPER FOR THE COURTS IN DETERMINING THE LEGAL RIGHTS OF CLAIMANT IS A PROPER SUBJECT OF INQUIRY BY THE ACCOUNTING OFFICERS, AND WHERE LAW REGULATES THE CREATION OF A STATUS ENTITLING TO PAY AND ALLOWANCES THIS OFFICE HAS JURISDICTION TO INQUIRE WHETHER THE LAWS AUTHORIZING THE CREATION OF THE STATUS HAVE BEEN COMPLIED WITH. THIS CLAIM CAN NOT BE ALLOWED SOLELY UNDER THE ACT OF MARCH 4, 1913, AND IT IS NECESSARY TO INQUIRE WHETHER THE DATE STATED IN THE COMMISSION IS THE DATE CONTEMPLATED; THAT IS, IN THE LANGUAGE OF THE COURT OF CLAIMS, WHETHER THE CLAIMANT WAS PROMOTED IN PURSUANCE OF LAW.

SECTION 7 OF THE ACT OF MARCH 3, 1899, PROVIDES:

* * * OFFICERS, AFTER PERFORMING THREE YEARS' SERVICE IN THE GRADE OF ENSIGN, SHALL, AFTER PASSING THE EXAMINATIONS NOW REQUIRED BY LAW, BE ELIGIBLE TO PROMOTION TO THE GRADE OF LIEUTENANT (JUNIOR GRADE) * * *.

SECTION 1496, REVISED STATUTES, PROVIDES:

NO LINE OFFICER BELOW THE GRADE OF COMMODORE, AND NO OFFICER NOT OF THE LINE SHALL BE PROMOTED TO A HIGHER GRADE ON THE ACTIVE LIST OF THE NAVY UNTIL HIS MENTAL, MORAL, AND PROFESSIONAL FITNESS TO PERFORM ALL HIS DUTIES AT SEA HAVE BEEN ESTABLISHED TO THE SATISFACTION OF A BOARD OF EXAMINING OFFICERS APPOINTED BY THE PRESIDENT.

SECTION 1562, REVISED STATUTES, PROVIDES:

IF AN OFFICER OF A CLASS SUBJECT TO EXAMINATION BEFORE PROMOTION SHALL BE ABSENT ON DUTY, AND BY REASON OF SUCH ABSENCE, OR OF OTHER CAUSE NOT INVOLVING FAULT ON HIS PART, SHALL NOT BE EXAMINED AT THE TIME REQUIRED BY LAW OR REGULATION, AND SHALL AFTERWARDS BE EXAMINED AND FOUND QUALIFIED, THE INCREASED RATE OF PAY TO WHICH HIS PROMOTION WOULD ENTITLE HIM SHALL COMMENCE FROM THE DATE WHEN HE WOULD HAVE BEEN ENTITLED TO IT HAD HE BEEN EXAMINED AND FOUND QUALIFIED AT THE TIME SO REQUIRED BY LAW OR REGULATION; AND THIS RULE SHALL APPLY TO ANY CASES OF THIS DESCRIPTION WHICH MAY HAVE HERETOFORE OCCURRED. AND IN EVERY SUCH CASE THE PERIOD OF SERVICE OF THE PARTY, IN THE GRADE TO WHICH HE WAS PROMOTED, SHALL, IN REFERENCE TO THE RATE OF HIS PAY, BE CONSIDERED TO HAVE COMMENCED FROM THE DATE WHEN HE WAS SO ENTITLED TO TAKE RANK. WHILE THE COURT OF CLAIMS IN THE SMITH CASE HELD THAT THIS SECTION WAS REPEALED BY THE ACT OF MARCH 4, 1913, IN THE TOULON CASE IT ASSERTED JURISDICTION TO GO BACK OF THE DATE STATED IN THE COMMISSION AND IN ITS STATEMENT OF FACTS IT IS STATED THAT THE OFFICER COMPLETED HIS THREE YEARS' SERVICE REQUIRED FOR PROMOTION DECEMBER 3, 1910, BUT "HIS EXAMINATION WAS DELAYED WITHOUT FAULT ON HIS PART UNTIL OCTOBER 9, 1911," AND ON PAGE 91 THE COURT SAYS:

CLEARLY AT THE END OF THREE YEARS' SERVICE THE OFFICER BECOMES ELIGIBLE TO PROMOTION, SUBJECT TO EXAMINATION. THOUGH HIS EXAMINATION BE DELAYED, HE TAKES HIS RANK FROM THE DATE HE BECOMES ELIGIBLE TO PROMOTION IF HE PASSES HIS EXAMINATION, AND UNDER THE PROVISIONS OF SECTION 1562 HE, MEETING ITS CONDITION, MAY ALSO GET THE PAY OF HIS RANK FROM THAT DATE * *

IT APPEARS EVIDENT FROM THE LATER CASES CITED THAT THE COURT'S REASON FOR HOLDING IN THE SMITH CASE THAT SECTION 1562, REVISED STATUTES, HAD BEEN REPEALED BY IMPLICATION BY THE INCONSISTENT PROVISION OF THE ACT OF 1913 HAS BEEN ABANDONED; THERE SEEMS TO BE NO REPUGNANCY BETWEEN THE TWO STATUTES AND THEY MAY BE PROPERLY CONSIDERED AS IN PARI MATERIA.

SECTION 1505, REVISED STATUTES, AS AMENDED BY THE ACT OF MARCH 11, 1912, 37 STAT. 73, PROVIDES:

ANY OFFICER OF THE NAVY ON THE ACTIVE LIST BELOW THE RANK OF COMMANDER WHO, UPON EXAMINATION FOR PROMOTION, IS FOUND NOT PROFESSIONALLY QUALIFIED, SHALL BE SUSPENDED FROM PROMOTION FOR A PERIOD OF SIX MONTHS FROM THE DATE OF APPROVAL OF SAID EXAMINATION, AND SHALL SUFFER A LOSS OF NUMBERS EQUAL TO THE AVERAGE SIX MONTHS' RATE OF PROMOTION TO THE GRADE FOR WHICH SAID OFFICER IS UNDERGOING EXAMINATION DURING THE FIVE FISCAL YEARS NEXT PRECEDING THE DATE OF APPROVAL OF SAID EXAMINATION, AND UPON THE TERMINATION OF SAID SUSPENSION FROM PROMOTION HE SHALL BE REEXAMINED, AND IN CASE OF HIS FAILURE UPON SUCH REEXAMINATION HE SHALL BE DROPPED FROM THE SERVICE WITH NOT MORE THAN ONE YEAR'S PAY: PROVIDED, THAT THE PROVISIONS OF THIS ACT SHALL BE EFFECTIVE FROM AND AFTER JANUARY FIRST, NINETEEN HUNDRED AND ELEVEN.

PRIOR TO ITS AMENDMENT IN 1912, SECTION 1505, REVISED STATUTES, PROVIDED:

ANY OFFICER OF THE NAVY ON THE ACTIVE LIST BELOW THE GRADE OF COMMANDER, WHO, UPON EXAMINATION FOR PROMOTION, IS NOT FOUND PROFESSIONALLY QUALIFIED, SHALL BE SUSPENDED FROM PROMOTION FOR ONE YEAR, WITH CORRESPONDING LOSS OF DATE WHEN HE SHALL BE REEXAMINED, AND IN CASE OF HIS FAILURE UPON WHICH REEXAMINATION HE SHALL BE DROPPED FROM THE SERVICE.

THE CHANGES MADE BY THE AMENDMENT INCLUDED A REDUCTION OF THE PERIOD OF SUSPENSION, A DEFINITE FIXING OF THE DATE FROM WHICH SUCH SUSPENSION OPERATES, A REDUCTION IN, AND CHANGE OF METHOD FOR DETERMINING, THE LOSS OF NUMBERS OR "LOSS OF DATE," AND THE PROVISION FOR A YEAR'S PAY WHEN DROPPED FROM THE NAVY ON A FAILURE ON REEXAMINATION.

THE COURT OF CLAIMS IN THE CASE OF AUSTIN V. UNITED STATES, 20 CT.CLS. 269, IN CONSTRUING THE ORIGINAL PROVISION HELD THAT AN OFFICER WHO FAILED PROFESSIONALLY ON THE FIRST EXAMINATION AND CLAIMED PAY OF THE ADVANCED GRADE AFTER ONE YEAR FROM THE DATE UPON WHICH HE WOULD HAVE BEEN PROMOTED HAD HE NOT FAILED, HELD THAT SECTION 1562, REVISED STATUTES, IN GIVING INCREASED RANK FOR PAY PURPOSES FROM THE DATE ENTITLED TO PROMOTION WHERE THE EXAMINATION THEREFOR WAS DELAYED WITHOUT FAULT ON THE PART OF THE OFFICER, GAVE SUCH RIGHT ON THE PRESUMPTION OF COMPETENCY, BUT THAT WHERE THE OFFICER'S FAILURE ON THE FIRST EXAMINATION SUBSEQUENT TO THE DATE OF ELIGIBILITY FOR PROMOTION DEMONSTRATED HIS INCOMPETENCY, THE PRESUMPTION OF COMPETENCY CONTEMPLATED BY THE STATUTE WAS REPELLED AND THAT THE OFFICER WAS ENTITLED TO PAY ONLY FROM THE DATE HE QUALIFIED BY PASSING THE SECOND EXAMINATION.

IT IS TO BE OBSERVED THAT THE STATUTORY PENALTY HAS A DOUBLE ASPECT. PROVIDES (1) AN IMMEDIATE SUSPENSION FROM PROMOTION AND (2) FOR A LOSS OF NUMBERS, WHICH AFTER THE EXPIRATION OF THE PERIOD OF SUSPENSION DOES NOT MILITATE AGAINST THE OFFICER'S PROMOTION TO THE NEXT HIGHER GRADE WHERE PROMOTION IS BY REASON OF LENGTH OF SERVICE ALONE, BUT DOES OPERATE TO DEFER FUTURE PROMOTIONS BASED ON SENIORITY, THE OFFICER'S LOSS OF NUMBERS REQUIRING HIS BEING PLACED BELOW OFFICERS TO WHOM OTHERWISE HE WOULD BE SENIOR.

THE COMPTROLLER OF THE TREASURY ADOPTED THE VIEW OF THE COURT OF CLAIMS IN THE AUSTIN CASE UNDER THE AMENDED LAW. SEE IN RE CANINE, 22 COMP. DEC. 623. THE MATTER SUBSEQUENTLY CAME BEFORE THE COURT OF CLAIMS ON THE CLAIM OF TOULON V. UNITED STATES, 51 CT.CLS. 87 (THERETOFORE DENIED BY THE COMPTROLLER OF THE TREASURY, DECISION OF OCTOBER 15, 1913, 67 MS. COMP. DEC. 194). THE COURT CALLED ATTENTION TO THE GREAT VARIATION IN THE PENALTIES INFLICTED UPON OFFICERS WHERE THERE WAS A DELAY IN THE EXAMINATION THROUGH NO FAULT OF THE OFFICER, IN TOULON'S CASE 10 MONTHS, SO THAT ON HIS FAILURE, BY APPLYING THE RULE ANNOUNCED IN THE AUSTIN CASE, THE SUSPENSION FROM PROMOTION WOULD BE 16 MONTHS, NOT 6 MONTHS, AS THE STATUTE PRESCRIBED, WHILE IN THE USUAL CASE WHERE THE OFFICER IS EXAMINED IMMEDIATELY PRIOR TO OR VERY SHORTLY AFTER ELIGIBILITY FOR PROMOTION THE SUSPENSION WOULD BE FOR THE STATUTORY PERIOD ALONE, AND HELD THAT A DATE OF RANK 6 MONTHS AFTER THE ORIGINAL ELIGIBILITY CONSTITUTED A PROMOTION IN PURSUANCE OF LAW.

SOME CONFUSION HAS ARISEN BY REASON OF REFERENCE TO STATUTES GIVING A RIGHT TO PAY FROM DATE OF ELIGIBILITY OR VACANCY WHERE THERE WAS A DELAY IN EXAMINATION; FOR EXAMPLE, SECTION 1562, REVISED STATUTES, AND THE ACT OF JUNE 22, 1874, 18 STAT. 191, THE COURTS HAVING DESCRIBED THIS RIGHT TO PAY IN THE HIGHER GRADE OR RANK FROM AN ANTERIOR DATE AS A "CONSTRUCTIVE" PROMOTION AS DISTINGUISHED FROM THE ACTUAL PROMOTION AS THE RESULT OF THE DELAYED EXAMINATION OR, AS IN THE AUSTIN CASE, ON A PRESUMPTION OF QUALIFICATION WHICH IS REPELLED BY THE FACT OF FAILURE IN THE EXAMINATION AFTER DATE FROM WHICH THE PRESUMPTION ORIGINALLY ATTACHED. BUT WHATEVER MAY HAVE INDUCED ENACTMENT OF THE LAW GIVING PAY FROM SUCH ANTERIOR DATE, IT GIVES THE PAY, AND WHERE, UNDER SECTION 1505, A DEFINITE PERIOD OF SUSPENSION IS PROVIDED, THAT PERIOD OF SUSPENSION SHOULD OPERATE UNIFORMLY, NOT 6 MONTHS IN ONE CASE, 10, 15, OR 20 MONTHS IN OTHER CASES. THE STATUTE DOES NOT CONTEMPLATE THIS INEQUALITY OF TREATMENT. WHERE THE DELAY IN THE EXAMINATION IS NOT DUE TO THE FAULT OF THE OFFICER, THE STATUTORY PERIOD OF SUSPENSION SHOULD NOT BE MODIFIED AND THE OFFICER CHARGED WITH AN EXCESSIVE PENALTY, IN DIRECT VIOLATION OF THE TERMS OF SECTION 1562, REVISED STATUTES, WHERE HE FAILS ON HIS FIRST PROFESSIONAL EXAMINATION AND AFTER THE PERIOD OF SUSPENSION REQUIRED BY THE STATUTE IS AGAIN EXAMINED AND FOUND QUALIFIED. IN CLASSES OF CASES SUCH AS HEREIN DESCRIBED THIS OFFICE HOLDS, IN AGREEMENT WITH THE COURT OF CLAIMS IN THE TOULON CASE, THAT WHERE THE DATE OF RANK IS STATED 6 MONTHS AFTER THE DATE THE OFFICER WAS ORIGINALLY ELIGIBLE FOR PROMOTION ON PASSING HIS SECOND PROFESSIONAL EXAMINATION, FOR PAY PURPOSES HE HAS BEEN PROMOTED IN PURSUANCE OF LAW AND IS ENTITLED TO PAY FROM THE DATE STATED IN HIS COMMISSION UNDER THE ACT OF MARCH 4, 1913. CONTRARY DECISIONS OF THE ACCOUNTING OFFICERS WILL NOT BE FOLLOWED HEREAFTER.