B-143870, NOVEMBER 2, 1960, 40 COMP. GEN. 256

B-143870: Nov 2, 1960

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MILITARY PERSONNEL - DISABILITY RETIRED PAY - HIGHER GRADE - SERVICE REQUIREMENTS - WILLIAMS CASE ALTHOUGH THE DISABILITY FOR WHICH A NAVAL OFFICER WAS PLACED ON THE PERMANENT DISABILITY RETIRED LIST WAS INITIALLY FOUND TO EXIST DURING AN EXAMINATION THE DAY BEFORE THE EXAMINATION SPECIFICALLY DENOMINATED AS A PROMOTION EXAMINATION. THE POSITIVE STATEMENT THAT THE DISABILITY WHICH CAUSED THE RETIREMENT WAS FIRST DETERMINED TO BE OF A DISQUALIFYING NATURE AS THE RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING THE OFFICER'S TEMPORARY PROMOTION FROM LIEUTENANT TO LIEUTENANT COMMANDER BRINGS THE PARTICULAR FACTS WITHIN THE PURVIEW OF THE LEONARD AND FREDRICKSON CASES (131 CT.

B-143870, NOVEMBER 2, 1960, 40 COMP. GEN. 256

MILITARY PERSONNEL - DISABILITY RETIRED PAY - HIGHER GRADE - SERVICE REQUIREMENTS - WILLIAMS CASE ALTHOUGH THE DISABILITY FOR WHICH A NAVAL OFFICER WAS PLACED ON THE PERMANENT DISABILITY RETIRED LIST WAS INITIALLY FOUND TO EXIST DURING AN EXAMINATION THE DAY BEFORE THE EXAMINATION SPECIFICALLY DENOMINATED AS A PROMOTION EXAMINATION, THE POSITIVE STATEMENT THAT THE DISABILITY WHICH CAUSED THE RETIREMENT WAS FIRST DETERMINED TO BE OF A DISQUALIFYING NATURE AS THE RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING THE OFFICER'S TEMPORARY PROMOTION FROM LIEUTENANT TO LIEUTENANT COMMANDER BRINGS THE PARTICULAR FACTS WITHIN THE PURVIEW OF THE LEONARD AND FREDRICKSON CASES (131 CT. CT. 91: 133 ID. 890) UNDER WHICH EXAMINATIONS HAVING A DIRECT AND SUBSTANTIAL BEARING IN CONNECTION WITH EFFECTING PROMOTIONS CAN BE CONSIDERED PROMOTION EXAMINATIONS FOR RETIRED PAY BASED ON THE HIGHER RANK PURSUANT TO THE FIFTH PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 272 (D) (1952 USED.). THE DECISION OF APRIL 8, 1959, IN WILLIAMS V. UNITED STATES, CT. CL. NO. 173-57, THAT THE PHYSICAL EXAMINATION GIVEN TO THE NAVAL OFFICER, ABOUT WHOSE PHYSICAL CONDITION THE NAVY HAD INSTITUTED AN INQUIRY IN CONNECTION WITH EFFECTING A PROMOTION, CONSTITUTED A PROMOTION PHYSICAL EXAMINATION FOR THE PURPOSES OF THE FIFTH PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949 WAS BASED ON THE PARTICULAR FACTS AND CIRCUMSTANCES PECULIAR TO THAT CASE ALONE, AND IN VIEW OF THAT HOLDING, ALL OTHERS MUST LIKEWISE BE CONSIDERED ON THEIR OWN MERITS, THAT IS, WHETHER UNDER THE PARTICULAR FACTS AND CIRCUMSTANCES OF THE INDIVIDUAL CASE CONCERNED, THE PHYSICAL EXAMINATION ACTUALLY RECEIVED MAY REASONABLY BE VIEWED FOR PURPOSES OF THE FIFTH PROVISO IN SECTION 402 (D) AS CONSTITUTING A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PROMOTION. THE FACT THAT ALL OFFICERS OF THE LINE LISTED IN A NAVY DIRECTIVE ISSUED IN JULY 1951 FOR PROMOTION TO LIEUTENANT COMMANDER HAD HELD THEIR THEN CURRENT RANK OF LIEUTENANT IN THE LINE FROM JULY 1, 1944, JUSTIFIES THE CONCLUSION THAT THE TEMPORARY PROMOTIONS OF LINE LIEUTENANTS TO THE GRADE OF LIEUTENANT COMMANDERS ON JULY 5, 1951, UNDER THE DIRECTIVE WERE BASED UPON LENGTH OF SERVICE "IN RANK" TO BRING THE OFFICERS WITHIN THE CUMULATIVE SERVICE ELIGIBILITY REQUIREMENTS OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, AND, THEREFORE, A NAVAL OFFICER WHOSE DISABILITY FOR WHICH HE WAS RETIRED WAS FIRST DETERMINED TO BE DISQUALIFYING AS THE RESULT OF A PROMOTION PHYSICAL EXAMINATION MAY RECEIVE RETIRED PAY OF THE HIGHER GRADE PURSUANT TO SECTION 402 (D) ON THE BASIS OF A PROMOTION FROM LIEUTENANT TO LIEUTENANT COMMANDER UNDER SUCH DIRECTIVE. THE COURT OF CLAIMS IN WILLIAMS V. UNITED STATES, CT. CL. NO. 173-57, DECIDED APRIL 8, 1959, RECOGNIZED THAT THE LENGTH OF SERVICE REQUIREMENTS FOR ELIGIBILITY FOR TEMPORARY PROMOTIONS UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949 DID NOT HAVE TO BE SPELLED OUT IN A STATUTE BUT COULD BE PRESCRIBED BY A NAVY DIRECTIVE IN A CASE INVOLVING A TEMPORARY PROMOTION AUTHORIZED UNDER THE ACT OF JULY 24, 1941.

TO E. C. DODD, DEPARTMENT OF THE NAVY, NOVEMBER 2, 1960:

YOU REQUEST IN LETTER OF AUGUST 15, 1960, (FORWARDED HERE, WITH ENCLOSURES, UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N-526), AN ADVANCED DECISION WHETHER IN THE CIRCUMSTANCES STATED HEREUNDER LIEUTENANT PAUL E. BARNHILL, U.S. NAVY, RETIRED, IS ENTITLED TO INCREASED RETIRED PAY BASED ON THE GRADE OF LIEUTENANT COMMANDER.

IT IS STATED THAT ON APRIL 6, 1951, LIEUTENANT BARNHILL WAS ADMITTED TO THE U.S. NAVAL HOSPITAL, GREAT LAKES, ILLINOIS. HIS NAME APPEARS ON ENCLOSURE (A) TO BUREAU OF NAVAL PERSONNEL CIRCULAR LETTER NO. 111-51 (PUBLISHED IN NAVY DEPARTMENT BULLETIN DATED JULY 15, 1951), INDICATING HIS TEMPORARY APPOINTMENT BY THE PRESIDENT ON JULY 5, 1951, TO THE GRADE OF LIEUTENANT COMMANDER IN THE LINE UNDER AUTHORITY OF THE ACT OF JULY 24, 1941, AS AMENDED, 34 U.S.C. 350-350K, 1952 USED. SUCH TEMPORARY APPOINTMENT WAS SUBJECT TO THE PHYSICAL, MENTAL, MORAL AND PROFESSIONAL QUALIFICATIONS PRESCRIBED BY THE SECRETARY OF THE NAVY.

LIEUTENANT BARNHILL APPEARED ON SEPTEMBER 6, 1951, BEFORE A PHYSICAL EVALUATION BOARD AND THE RECOMMENDED FINDING OF SUCH BOARD WAS THAT HE WAS UNFIT FOR DUTY. ON THE SAME DATE, THE COMMANDING OFFICER OF THE U.S. NAVAL HOSPITAL, GREAT LAKES, ILLINOIS, ADVISED THE CHIEF OF NAVAL PERSONNEL THAT," AT THE PRESENT TIME LIEUTENANT BARNHILL IS NOT PHYSICALLY QUALIFIED FOR APPOINTMENT TO LIEUTENANT COMMANDER * * *.' THE FOLLOWING DAY, SEPTEMBER 7, 1951, LIEUTENANT BARNHILL WAS GIVEN A ,PROMOTION" EXAMINATION AND HE WAS FOUND NOT PHYSICALLY QUALIFIED FOR PROMOTION. THE PROCEEDINGS AND RECOMMENDED FINDINGS OF THE PHYSICAL EVALUATION BOARD OF SEPTEMBER 6, 1951, AS MODIFIED BY THE RECOMMENDED FINDINGS OF THE PHYSICAL REVIEW COUNCIL, WERE APPROVED BY THE SECRETARY OF THE NAVY ON NOVEMBER 13, 1951, AND LIEUTENANT BARNHILL WAS PERMANENTLY RETIRED FOR PHYSICAL DISABILITY, EFFECTIVE DECEMBER 1, 1951, BY REASON OF "1POST THROMBOPHLEBITIC, SYNDROME NO. XI/D/XY.'

IT IS STATED THAT ON AUGUST 19, 1959, THE ORIGINAL RETIREMENT ORDERS THAT WERE ISSUED NOVEMBER 28, 1951, WERE CHANGED TO SHOW LIEUTENANT BARNHILL'S RETIRED RANK TO BE THAT OF LIEUTENANT COMMANDER WITH RETIRED PAY BASED ON THAT RANK RETROACTIVE TO DECEMBER 1, 1951. IT APPEARS THAT SUCH ACTION WAS BASED ON THE HOLDING OF THE COURT OF CLAIMS IN THE DECISION RENDERED APRIL 8, 1959, IN THE CASE OF JOHN CORDELL WILLIAMS V. UNITED STATES, CT. CL. NO. 173-57, CONSTRUING THE FIFTH PROVISO OF SECTION 402 (D), CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, 37 U.S.C. 272 (D), 1952 USED., AND THE FACT THAT (QUOTING FROM PARAGRAPH 6, PAGE 2 OF YOUR LETTER/---

* * * THE DISABILITY CAUSING LIEUTENANT BARNHILL'S PERMANENT RETIREMENT WAS FIRST DETERMINED TO BE OF A DISQUALIFYING NATURE AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING HIS TEMPORARY PROMOTION TO THE RANK OF LIEUTENANT COMMANDER.

YOU POINT OUT THAT THE DECISION OF THIS OFFICE DATED AUGUST 26, 1952, 32 COMP. GEN. 104, IN THE CASE OF LIEUTENANT COMMANDER WILLIAM A. LEONARD, U.S. NAVY, RETIRED, IS CONTRARY TO THE HOLDING IN THE WILLIAMS DECISION OF APRIL 8, 1959, AND ACCORDINGLY YOU REQUEST AN ADVANCE DECISION WHETHER THE WILLIAMS CASE MAY BE FOLLOWED SO AS TO ENTITLE LIEUTENANT BARNHILL TO RETIRED PAY BASED ON THE RANK OF LIEUTENANT COMMANDER RETROACTIVE TO DECEMBER 1, 1951.

ON MARCH 1, 1955, THE COURT OF CLAIMS RENDERED A DECISION IN FAVOR OF LIEUTENANT COMMANDER WILLIAM A. LEONARD V. UNITED STATES, 131 CT. CL. 91, AND ON JANUARY 31, 1956, THE COURT RENDERED A SIMILAR DECISION IN THE CASE OF CASPER T. FREDRICKSON V. UNITED STATES, 133 CT.1CL. 890. THE EFFECT OF THOSE DECISIONS AND THE CONSTRUCTION THENCEFORTH TO BE PLACED ON THE APPLICABLE PROVISIONS OF LAW (FIFTH PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949--- NOW CODIFIED IN 10 U.S.C. 1372) WERE DISCUSSED FULLY IN OUR DECISION DATED JANUARY 10, 1957, 36 COMP. GEN. 492. IT WAS THERE STATED (AT PAGE 497) THAT---

IT THUS APPEARS THAT THE OPINION OF THE COURT OF CLAIMS IS CONSISTENT WITH THE VIEW THAT THE STATUTE AUTHORIZES THE RETIRED PAY OF THE HIGHER GRADE, EVEN THOUGH THE IDENTICAL DISABILITY WAS FOUND DURING SOME EARLIER EXAMINATION, IF ITS DISQUALIFYING NATURE WAS FIRST DETERMINED TO EXIST DURING THE PROMOTION PHYSICAL EXAMINATION AND THEREFORE WAS "FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A * * * PROMOTION.'

THE DECISION OF APRIL 8, 1959, IN THE WILLIAMS CASE, CT. CL. NO. 173 57 (FOLLOWING AND CITING THE LEONARD AND FREDRICKSON CASES), REFLECTS THE TENDENCY OF THE COURT TO CONSTRUE BROADLY AND LIBERALLY THE PERTINENT PROVISIONS OF LAW. IN REFERRING TO THE LEONARD AND FREDRICKSON CASES, THE COURT POINTED OUT (1) THAT "1N THOSE CASES, THERE WERE ACTUAL PHYSICAL EXAMINATIONS DESIGNATED AS PHYSICAL EXAMINATIONS IN CONNECTION WITH PROMOTIONS; " (2) THAT SECTION 402 (D) "DOES NOT SPELL OUT ANY PARTICULAR TIME FOR THE EXAMINATION, NOR ANY PARTICULAR PERSON OR BOARD TO CONDUCT THE EXAMINATION" AND (3) THAT " ALL THAT THE STATUTE REQUIRES, IN THIS RESPECT, IS THAT THE PHYSICAL EXAMINATION BE GIVEN IN CONNECTION WITH EFFECTING A PROMOTION.'

AS TO (1) THE COURT STATED THAT " THE QUESTION OF LABELS IS NOT IMPORTANT" AND AS TO (2) AND (3), IT CONCLUDED THAT---

THE REAL QUESTION BEFORE THIS COURT IS WHETHER OR NOT UNDER ALL THE FACTS AND CIRCUMSTANCES OF THIS CASE, THE PHYSICAL EXAMINATION WHICH PLAINTIFF ACTUALLY RECEIVED CONSTITUTED A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PROMOTION.

THE DECISION CLEARLY INDICATES THAT NOT ALL PHYSICAL EXAMINATIONS ARE TO BE CONSIDERED AS NECESSARILY CONDUCTED IN CONNECTION WITH EFFECTING A PROMOTION BUT ONLY THOSE WHICH, UNDER THE PARTICULAR FACTS AND CIRCUMSTANCES OF THE CASE CONCERNED, CAN BE VIEWED AS HAVING A DIRECT AND SUBSTANTIAL BEARING IN CONNECTION WITH SUCH A PURPOSE, THAT IS, OF EFFECTING A PROMOTION. APPLYING THAT RULE TO THE PARTICULAR FACTS PRESENTED IN THE WILLIAMS CASE, AND STRESSING THE IMPORTANCE OF THE FACT THAT THE NAVY ACTUALLY HAD INSTITUTED "AN INQUIRY ABOUT PLAINTIFF'S PHYSICAL CONDITION IN CONNECTION WITH EFFECTING A PROMOTION," THE COURT HELD AS FOLLOWS:

CONSIDERING ALL THE FACTS AND CIRCUMSTANCES OF THIS CASE, AS SHOWN BY THE RECITAL OF THE EVENTS IN CHRONOLOGICAL ORDER, WE BELIEVE THAT THE PHYSICAL EXAMINATION WHICH PLAINTIFF RECEIVED WAS PART AND PARCEL OF ONE CONTINUOUS TRANSACTION AND MUST BE CONSIDERED TO BE A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING HIS PROMOTION.

AS POINTED OUT BY THE COURT, THE REAL QUESTION PRESENTED IN CASES ARISING UNDER THE FIFTH PROVISO CONTAINED IN SECTION 402 (D) OF THE 1949 LAW IS WHETHER UNDER ALL THE FACTS AND CIRCUMSTANCES OF THE PARTICULAR CASE THE PHYSICAL EXAMINATION ACTUALLY RECEIVED CONSTITUTES A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PROMOTION, AND IT APPEARS THAT THE DECISION OF APRIL 8, 1959, IN THE WILLIAMS CASE, ACTUALLY IS BASED ON THE PARTICULAR FACTS AND CIRCUMSTANCES PECULIAR TO THAT CASE ALONE. IN THE LIGHT OF THAT HOLDING, ALL OTHER CASES MUST LIKEWISE BE CONSIDERED ON THEIR OWN MERITS, THAT IS, WHETHER UNDER THE PARTICULAR FACTS AND CIRCUMSTANCES OF THE INDIVIDUAL CASE CONCERNED, THE PHYSICAL EXAMINATION ACTUALLY RECEIVED MAY REASONABLY BE VIEWED FOR PURPOSES OF THE FIFTH PROVISO IN SECTION 402 (D) AS CONSTITUTING A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PROMOTION.

IT IS NOT ENTIRELY CLEAR, BUT THE ENCLOSURES RECEIVED WITH YOUR LETTER WOULD SEEM TO INDICATE, THAT THE DISQUALIFYING NATURE OF THE DISABILITY (1POST THROMBOPHLEBITIC, ETC.), FOR WHICH LIEUTENANT BARNHILL PLACED ON THE PERMANENT DISABILITY RETIRED LIST EFFECTIVE DECEMBER 1, 1951, WAS INITIALLY DETERMINED TO EXIST BEFORE HIS EXAMINATION FOR PROMOTION (DENOMINATED AS SUCH). THE LETTER OF SEPTEMBER 6, 1951, FROM THE COMMANDING OFFICER OF THE U.S. NAVAL HOSPITAL, GREAT LAKES, ILLINOIS, TO THE CHIEF OF NAVAL PERSONNEL (ENCLOSURE (1) TO YOUR LETTER) INDICATES THAT LIEUTENANT BARNHILL HAD BEEN IN THE HOSPITAL SINCE APRIL 6, 1951, WITH DIAGNOSIS OF PNEUMONIA, CHANGED TO EMBOLISM AND LATER TO " POST THROMBOPHLEBITIC SYNDROME NO. XI/D/XY BY REASON OF SEQUELA," AND CONCLUDES WITH THE STATEMENT THAT AT THAT TIME LIEUTENANT BARNHILL WAS NOT PHYSICALLY QUALIFIED FOR TEMPORARY APPOINTMENT TO THE HIGHER RANK OF LIEUTENANT COMMANDER AS AUTHORIZED IN BUREAU OF NAVAL PERSONNEL CIRCULAR LETTER NO. 111-51. THE CHIEF OF NAVAL PERSONNEL IN HIS LETTER OF AUGUST 19, 1959, TO LIEUTENANT BARNHILL (ENCLOSURE (4) TO YOUR LETTER) STATES POSITIVELY, HOWEVER, THAT THE DISABILITY WHICH CAUSED THE SUBJECT MAN'S PERMANENT RETIREMENT ON DECEMBER 1, 1951, WAS FIRST DETERMINED TO BE OF A DISQUALIFYING NATURE AS THE RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING HIS TEMPORARY PROMOTION TO THE RANK OF LIEUTENANT COMMANDER. ASSUMING THE ACCURACY OF THAT STATEMENT, THE MATTER WOULD COME WITHIN THE RULE OF THE LEONARD AND FREDRICKSON CASES. COMPARE THE HOLDINGS WITH RESPECT TO LIEUTENANTS CRAIGHEAD AND OGBURN IN DECISION OF JANUARY 10, 1957, 36 COMP. GEN. 492.

THERE IS FOR FURTHER CONSIDERATION IN THE INSTANT CASE THE QUESTION WHETHER ELIGIBILITY FOR THE TEMPORARY APPOINTMENT OF LIEUTENANT BARNHILL TO THE GRADE OF LIEUTENANT COMMANDER WAS BASED ON ,CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN RANK, GRADE, OR RATING" AS REQUIRED BY THE EXPRESS PROVISIONS OF SECTION 402 (D). IN DECISION OF JUNE 14, 1956, 35 COMP. GEN. 696, IT WAS STATED THAT TEMPORARY PROMOTIONS UNDER THE ACT OF JULY 24, 1941, AS AMENDED,"DO NOT APPEAR TO BE BASED ON CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN RANK, GRADE, OR RATING.' THIS SAME QUESTION BECAME A SPECIFIC ISSUE IN THE WILLIAMS DECISION OF APRIL 8, 1959, THE COURT STATING IN THAT CONNECTION:

* * * PROMOTIONS UNDER THE 1941 ACT MAY NOT ALWAYS BE BASED UPON LENGTH OF SERVICE, BUT THE ELIGIBILITY FOR PROMOTION HERE WAS REQUIRED BY THE NAVY DIRECTIVE TO BE BASED ON LENGTH OF SERVICE. SECTION 402 (D) DOES NOT SAY THAT THE ELIGIBILITY FOR PROMOTION MUST BE REQUIRED BY STATUTE TO HAVE BEEN BASED ON YEARS OF SERVICE OR YEARS OF SERVICE IN RANK, AND WE HOLD THAT PLAINTIFF'S ELIGIBILITY FOR TEMPORARY PROMOTION WAS REQUIRED TO HAVE BEEN USED ON YEARS OF SERVICE IN RANK WITHIN THE MEANING OF THAT SECTION. (ITALICS SUPPLIED.)

IT IS CLEAR, THEREFORE, THAT THE HOLDING OF THE COURT IN THAT CASE IN FAVOR OF THE PLAINTIFF, WILLIAMS, WAS BASED ON THE SPECIFIC LENGTH OF SERVICE REQUIREMENTS THAT WERE PRESCRIBED IN ALNAV 104, OCTOBER 16, 1951. THE INFERENCE NECESSARILY ARISES THEREFORE THAT, IN THE ABSENCE OF SUCH LENGTH OF SERVICE REQUIREMENT IN THE APPLICABLE NAVY DIRECTIVE IN THAT CASE, THE COURT WOULD HAVE REACHED A DIFFERENT CONCLUSION IN THE MATTER.

IN THE PRESENT CASE THE PROVISIONS OF BUREAU OF NAVAL PERSONNEL CIRCULAR LETTER NO. 111-51 MAY NOT BE VIEWED AS ESTABLISHING OR EVEN AS INDICATING THAT THE TEMPORARY APPOINTMENTS THEREIN AUTHORIZED UNDER AUTHORITY OF THE 1941 LAW WERE TO BE BASED UPON "CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN RANK, GRADE OR RATING.' IT IS NOTED, HOWEVER, THAT THE TEMPORARY APPOINTMENT OF LIEUTENANT BARNHILL WAS TO THE GRADE OF LIEUTENANT COMMANDER IN THE LINE AND BY REFERENCE TO THE REGISTER OF COMMISSIONED AND WARRANT OFFICERS OF THE UNITED STATES NAVY AND MARINE CORPS, JANUARY 1, 1951, IT APPEARS THAT ALL OFFICERS OF THE LINE (INCLUDING LIEUTENANT BARNHILL) LISTED IN ENCLOSURE (A) TO CIRCULAR LETTER NO. 111-51 FOR TEMPORARY APPOINTMENT TO THE GRADE OF LIEUTENANT COMMANDER HAD HELD THEIR THEN CURRENT RANK OF LIEUTENANTS IN THE LINE FROM JULY 1, 1944. IN VIEW OF THAT FACT IT APPEARS REASONABLE TO CONCLUDE THAT THE TEMPORARY APPOINTMENTS OF LINE LIEUTENANTS DATED JULY 5, 1951, TO THE GRADE OF LIEUTENANT COMMANDERS, AS AUTHORIZED IN CIRCULAR LETTER NO. 111- 51, WERE BASED UPON THE LENGTH OF SERVICE "IN RANK" SO AS TO BRING THE CASE OF LIEUTENANT BARNHILL WITHIN THE SCOPE OF THE PROVISIONS OF SECTION 492 (D).

IT WILL BE NOTED FROM WHAT HAS BEEN STATED ABOVE THAT ALL CASES ARISING UNDER THE PROVISIONS OF SECTION 402 (D) MUST BE CONSIDERED ON THEIR OWN MERITS FOR DETERMINATION WHETHER IN THE PARTICULAR FACTS AND CIRCUMSTANCES THE PHYSICAL EXAMINATION ACTUALLY RECEIVED BY THE INDIVIDUAL CONCERNED MAY REASONABLY BE VIEWED FOR THE PURPOSES OF THE FIFTH PROVISO IN SECTION 402 (D) AS CONSTITUTING A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PROMOTION; WHETHER THE DISABILITY FOR WHICH RETIRED WAS FIRST DETERMINED TO BE DISQUALIFYING DURING SUCH PROMOTION EXAMINATION, AND IN THE CASE OF TEMPORARY APPOINTMENTS OR PROMOTIONS EFFECTED UNDER AUTHORITY OF THE 1941 LAW, THERE MUST BE A SHOWING, IN VIEW OF THE RULE IN THE WILLIAMS DECISION OF APRIL 8, 1959, THAT ELIGIBILITY FOR SUCH TEMPORARY PROMOTION WAS REQUIRED, ADMINISTRATIVELY OR OTHERWISE, TO HAVE BEEN BASED ON YEARS OF SERVICE IN RANK, GRADE, OR RATING WITHIN THE MEANING OF SECTION 402 (D). THE QUESTION SUBMITTED IS ANSWERED ACCORDINGLY.