B-148549, MAY 10, 1962, 41 COMP. GEN. 749

B-148549: May 10, 1962

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WHO WAS NOT ELIGIBLE FOR THE PROMOTION BECAUSE A VACANCY IN THAT GRADE HAD NOT OCCURRED. IS NOT A PHYSICAL EXAMINATION HAVING ANY CONNECTION OR RELATION TO THE PROMOTION TO BE CONSIDERED A PROMOTION EXAMINATION UNDER 10 U.S.C. 1372 (4) TO ENTITLE THE MEMBER TO DISABILITY RETIRED PAY AT THE HIGHER GRADE. THE ENCLOSURES RECEIVED THEREWITH PRESENT FOR AN ADVANCE DECISION THE QUESTION WHETHER YOU ARE AUTHORIZED UNDER CLAUSE (4) OF 10 U.S.C. 1372 TO PAY RETIRED PAY IN THE CASE OF RICHARD T. THE DATE HE WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST UNDER AUTHORITY OF 10 U.S.C. 1202. YOU HAVE ADVISED US INFORMALLY THAT THE OFFICER DIED ON MAY 3. ANY MEMBER OF AN ARMED FORCE WHOSE NAME IS PLACED ON A TEMPORARY DISABILITY RETIRED LIST UNDER 10 U.S.C. 1202 IS ENTITLED TO.

B-148549, MAY 10, 1962, 41 COMP. GEN. 749

PAY - RETIRED - DISABILITY - PHYSICAL EXAMINATION FOR PROMOTION DETERMINATION A PHYSICAL EXAMINATION IN CONNECTION WITH THE HOSPITALIZATION, TREATMENT AND TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST OF A MARINE CORPS LIEUTENANT, WHO AT THE TIME OF THE EXAMINATION HAD BEEN SELECTED FOR PROMOTION TO THE TEMPORARY GRADE OF CAPTAIN, BUT WHO WAS NOT ELIGIBLE FOR THE PROMOTION BECAUSE A VACANCY IN THAT GRADE HAD NOT OCCURRED, IS NOT A PHYSICAL EXAMINATION HAVING ANY CONNECTION OR RELATION TO THE PROMOTION TO BE CONSIDERED A PROMOTION EXAMINATION UNDER 10 U.S.C. 1372 (4) TO ENTITLE THE MEMBER TO DISABILITY RETIRED PAY AT THE HIGHER GRADE, EVEN THOUGH THE PHYSICAL EXAMINATION MIGHT CONSTITUTE THE MEMBER'S "MOST RECENTLY REPORTED PHYSICAL XAMINATION" UNDER SECNAV INSTRUCTION 6120.2.

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, MAY 10, 1962:

YOUR LETTER OF MARCH 29, 1962, AND THE ENCLOSURES RECEIVED THEREWITH PRESENT FOR AN ADVANCE DECISION THE QUESTION WHETHER YOU ARE AUTHORIZED UNDER CLAUSE (4) OF 10 U.S.C. 1372 TO PAY RETIRED PAY IN THE CASE OF RICHARD T. GERMAN, 1074166, U.S. MARINE CORPS, RETIRED, BASED ON THE GRADE OF CAPTAIN RATHER THAN OF FIRST LIEUTENANT EFFECTIVE FROM MARCH 21, 1962, THE DATE HE WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST UNDER AUTHORITY OF 10 U.S.C. 1202. YOUR SUBMISSION HAS BEEN ASSIGNED NO. DO-MC- 642 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE. YOU HAVE ADVISED US INFORMALLY THAT THE OFFICER DIED ON MAY 3, 1962.

SECTION 1372, TITLE 10, U.S. CODE, IN PERTINENT PART PROVIDES THAT UNLESS ENTITLED TO A HIGHER RETIRED GRADE UNDER SOME OTHER PROVISION OF LAW, ANY MEMBER OF AN ARMED FORCE WHOSE NAME IS PLACED ON A TEMPORARY DISABILITY RETIRED LIST UNDER 10 U.S.C. 1202 IS ENTITLED TO---

(3) THE PERMANENT REGULAR OR RESERVE GRADE TO WHICH HE WOULD HAVE BEEN PROMOTED HAD IT NOT BEEN FOR THE PHYSICAL DISABILITY FOR WHICH HE IS RETIRED AND WHICH WAS FOUND TO EXIST AS A RESULT OF HIS PHYSICAL EXAMINATION FOR PROMOTION.

(4) THE TEMPORARY GRADE TO WHICH HE WOULD HAVE BEEN PROMOTED HAD IT NOT BEEN FOR THE PHYSICAL DISABILITY FOR WHICH HE IS RETIRED, IF ELIGIBILITY FOR THAT PROMOTION WAS REQUIRED TO BE BASED ON CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN GRADE AND THE DISABILITY WAS DISCOVERED AS A RESULT OF HIS PHYSICAL EXAMINATION FOR PROMOTION. (ITALICS SUPPLIED.)

A DETAILED STATEMENT OF THE FACTS IN THIS CASE, WHICH ARE SET FORTH BELOW, AND REFERENCE TO CERTAIN PROVISIONS OF LAW AND REGULATIONS ARE ESSENTIAL TO A PROPER UNDERSTANDING OF THE BASIS FOR THE ACTION TAKEN BY THE SECRETARY OF THE NAVY ON MARCH 28, 1962, IN APPOINTING RICHARD T. GERMAN AS A "TEMPORARY CAPTAIN" ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE FROM MARCH 21, 1962.

SECNAV INSTRUCTION 6120.2, DATED JULY 17, 1961, ANNOUNCED A CHANGE TO THE SECRETARY OF THE NAVY REGULATIONS GOVERNING PROMOTION PHYSICAL EXAMINATIONS OF OFFICERS OF THE NAVY AND MARINE CORPS ON ACTIVE DUTY. PARAGRAPH 2 OF SECNAV INSTRUCTION 6120.2 STATES THAT THE REGULATIONS GOVERNING THE DETERMINATION OF PHYSICAL QUALIFICATIONS FOR THE PROMOTION OF OFFICERS TO GRADES ABOVE WARRANT OFFICER, W-1, FOR ALL REGULAR AND RESERVE OFFICERS OF THE NAVY AND MARINE CORPS ON ACTIVE DUTY HAVE BEEN CHANGED; THAT SUCH QUALIFICATIONS "WILL HENCEFORTH BE DETERMINED IN THE NAVY DEPARTMENT FROM THE OFFICER'S MOST RECENTLY REPORTED PHYSICAL EXAMINATION IN CONJUNCTION WITH HIS RECORDS AND HIS DUTY STATUS" WITH AN EXCEPTION AS TO ENSIGNS NOT PERTINENT HERE. IT IS EXPRESSLY PROVIDED THAT ADDITIONAL PHYSICAL EXAMINATIONS CONDUCTED IN THE FIELD EXCLUSIVELY FOR THE PURPOSE OF DETERMINING PHYSICAL QUALIFICATIONS FOR PROMOTION "ARE, UNLESS SPECIFICALLY ORDERED, NO LONGER REQUIRED.'

PARAGRAPH 3 PROVIDES THAT, SUBJECT TO ANY FURTHER REVIEW OF THE RECORDS OF THE NAVY DEPARTMENT WHICH MAY BE INDICATED AND ACTION PURSUANT THERETO, AN OFFICER WILL BE CONSIDERED PHYSICALLY QUALIFIED FOR PROMOTION PROVIDED HE IS NOT (1) UNDERGOING HOSPITALIZATION, (2) ON SICK LEAVE, (3) ASSIGNED A PHYSICAL LIMITED DUTY STATUS AS THE RESULT OF ACTION ON THE REPORT OF A BOARD OF MEDICAL SURVEY, (4) AWAITING APPEARANCE BEFORE A PHYSICAL EVALUATION BOARD, OR (5) AWAITING FINAL ACTION ON THE RECOMMENDED FINDINGS OF A PHYSICAL EVALUATION BOARD, A BOARD OF MEDICAL SURVEY, OR A MEDICAL BOARD. PARAGRAPH 6201-1B (5), MARINE CORPS PERSONNEL MANUAL, 1961 (CHANGE 1, SEPTEMBER 13, 1961), PROVIDES THAT COMMANDING OFFICERS SHALL REPORT BY MESSAGE TO THE COMMANDANT OF THE MARINE CORPS THE NAME OF ANY OFFICER ON A PROMOTION LIST WHO IS IN, OR ENTERS INTO, ANY OF THE FIVE STATUSES LISTED ABOVE.

THE INSTRUCTIONS REFERRED TO ABOVE APPEAR TO REFLECT THE PROVISIONS OF 10 U.S.C. 5861, AS AMENDED BY SECTION 1 (129) OF THE ACT OF SEPTEMBER 2, 1958, 72 STAT. 1497, ELIMINATING THE PRIOR STATUTORY REQUIREMENT THAT A PHYSICAL EXAMINATION FOR PROMOTION BE CONDUCTED BY A BOARD OF OFFICERS OF THE MEDICAL OR DENTAL CORPS TO DETERMINE WHETHER PHYSICALLY QUALIFIED TO PERFORM DUTY AT SEA AND IN THE FIELD IN THE CASE OF AN OFFICER OF THE MARINE CORPS AND PROVIDING THAT, BEFORE AN OFFICER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS MAY BE PROMOTED TO A GRADE ABOVE ENSIGN IN THE NAVY OR SECOND LIEUTENANT IN THE MARINE CORPS,"HE MUST QUALIFY FOR PROMOTION BY PASSING SUCH PHYSICAL EXAMINATION AS THE SECRETARY OF THE NAVY MAY PRESCRIBE.' PARAGRAPH 6120-1B, MARINE CORPS MANUAL, 1961, PROVIDES THAT PHYSICAL EXAMINATIONS ARE CONDUCTED TO DETERMINE AN INDIVIDUAL'S QUALIFICATIONS FOR ENTRY INTO THE MARINE CORPS "AND PERIODICALLY THEREAFTER TO DETERMINE HIS FITNESS TO PERFORM THE DUTIES OF HIS GRADE AND DESIGNATION, AND PRIOR TO SEPARATION.' IT IS PROVIDED IN PARAGRAPH 6120-2B THAT "EACH OFFICER ON ACTIVE DUTY SHALL HAVE A PHYSICAL EXAMINATION CONDUCTED ANNUALLY WITHIN 30 DAYS OF HIS BIRTHDAY.'

YOU STATE THAT WHILE SERVING AS A FIRST LIEUTENANT IN THE REGULAR MARINE CORPS, RICHARD T. GERMAN WAS GIVEN AN ANNUAL PHYSICAL EXAMINATION ON SEPTEMBER 25, 1961; THAT HE "WAS FOUND PHYSICALLY QUALIFIED FOR ACTIVE DUTY" AND THAT YOU HAVE "NO OTHER PHYSICAL EXAMINATION OF RECORD AFTER THAT DATE UNTIL HE WAS ADMITTED TO THE HOSPITAL ON 15 MARCH 1962.' HE WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE MARCH 21, 1962, UNDER AUTHORITY OF 10 U.S.C. 1202 IN THE GRADE OF FIRST LIEUTENANT.

SECNAV NOTE 1421 ( ALNAV) OF OCTOBER 17, 1961, ANNOUNCED THAT THE PRESIDENT HAD APPROVED THE REPORTS OF SELECTION BOARDS RECOMMENDING FIRST LIEUTENANT GERMAN AND OTHERS FOR TEMPORARY PROMOTION TO THE GRADE OF CAPTAIN. HIS ELIGIBILITY FOR CONSIDERATION FOR SUCH PROMOTION WAS BASED ON 2 YEARS' SERVICE IN THE GRADE OF FIRST LIEUTENANT IN THE MARINE CORPS (10 U.S.C. 5751 (B) (5) ). UNDER THE PROVISIONS OF 10 U.S.C. 5769 (A) HE WAS CONSIDERED AS "SELECTED FOR PROMOTION" UPON APPROVAL OF THE SELECTION BOARD REPORT BY THE PRESIDENT AND HIS NAME THEREUPON WAS PLACED ON THE PROMOTION LIST FOR THE GRADE OF CAPTAIN IN THE ORDER OF HIS RANK (HE WAS NO. 316) AT THE TIME OF THE APPROVAL OF THE REPORT, FOLLOWING THE NAMES OF ANY OFFICERS RECOMMENDED FOR PROMOTION TO THE GRADE OF CAPTAIN IN AN EARLIER APPROVED REPORT WHO HAD NOT YET BEEN PROMOTED. UNDER 10 U.S.C. 5769 (B) (1) HE WOULD HAVE BECOME ELIGIBLE FOR TEMPORARY PROMOTION UPON THE OCCURRENCE OF A VACANCY IN THE GRADE OF CAPTAIN, NO QUESTION ARISING WITH RESPECT TO HIS PROFESSIONAL QUALIFICATIONS (SEE PARAGRAPH 6201-1A (2). MARINE CORPS PERSONNEL MANUAL, 1961) AND HIS PHYSICAL FITNESS HAVING BEEN ESTABLISHED UNDER THE EXPLICIT LANGUAGE IN SECNAV INSTRUCTION 6120.2 DATED JULY 17, 1961, BY HIS ,MOST RECENTLY REPORTED PHYSICAL EXAMINATION" OF SEPTEMBER 25, 1961. WHEN FIRST LIEUTENANT GERMAN BECAME ILL AND WAS HOSPITALIZED ON MARCH 15, 1962, HOWEVER, THE PROVISIONS OF PARAGRAPH 6201- 1B (5), MARINE CORPS PERSONNEL MANUAL, 1961 ( CHANGE 1, SEPTEMBER 13, 1961) REQUIRED HIS COMMANDING OFFICER TO NOTIFY THE COMMANDANT OF THE MARINE CORPS OF THAT FACT. HE WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE MARCH 21, 1962, BEFORE HE BECAME ELIGIBLE FOR PROMOTION, SINCE NO VACANCY HAD OCCURRED IN THE GRADE OF CAPTAIN TO WHICH HE COULD HAVE BEEN PROMOTED. AS PREVIOUSLY STATED, THE SECRETARY OF THE NAVY ON MARCH 28, 1962, APPOINTED HIM A TEMPORARY CAPTAIN ON THE RETIRED LIST EFFECTIVE MARCH 21, 1962.

IN THE ENDORSEMENT OF MARCH 30, 1962, TRANSMITTING YOUR LETTER, IT IS STATED THAT MARINE CORPS HEADQUARTERS CONCURS UNEQUIVOCALLY IN THE VIEWS EXPRESSED IN THE ATTACHED MEMORANDUM OF 27 MARCH 1962 FROM THE DEPUTY JUDGE ADVOCATE GENERAL OF THE NAVY TO THE SECRETARY OF THE NAVY CONCERNING THE CASE OF CAPTAIN GERMAN.

THAT MEMORANDUM RECITES THAT FIRST LIEUTENANT GERMAN WAS SELECTED FOR PROMOTION TO THE GRADE OF CAPTAIN ON OCTOBER 17, 1961, AND WHILE ON SUCH PROMOTION LIST AWAITING A VACANCY IN THE GRADE OF CAPTAIN IT WAS DETERMINED THAT HE WAS PHYSICALLY UNFIT FOR DUTY AND THEREFORE HE WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE MARCH 21, 1962. SPECIFIC REFERENCE IS MADE IN THE MEMORANDUM TO ONE OF THE TWO BASIC REQUIREMENTS OF CLAUSE (4) IN 10 U.S.C. 1372, NAMELY, THAT THE DISABILITY AUTHORIZING A HIGHER GRADE ON A RETIRED LIST MUST HAVE BEEN "DISCOVERED AS A RESULT OF HIS PHYSICAL EXAMINATION FOR PROMOTION" AND TO THE CHANGES IN PROCEDURES GOVERNING PROMOTION PHYSICAL EXAMINATIONS EFFECTED BY SECNAV INSTRUCTION 6120.2 OF JULY 17, 1961, SO THAT "SUCH QUALIFICATIONS WILL HENCEFORTH BE DETERMINED IN THE NAVY DEPARTMENT FROM THE OFFICER'S MOST RECENTLY REPORTED PHYSICAL EXAMINATION.' IT WAS CONCLUDED THAT THUS, IF A PERSON IS PHYSICALLY QUALIFIED FOR A PROMOTION AT THE TIME OF HIS SELECTION AND A SUBSEQUENT PHYSICAL EXAMINATION SHOWS THAT HE IS NOT PHYSICALLY QUALIFIED FOR PROMOTION, THIS PHYSICAL EXAMINATION WILL CONSTITUTE THE OFFICER'S MOST RECENTLY REPORTED PHYSICAL EXAMINATION AND WILL BE DETERMINATIVE OF HIS ELIGIBILITY FOR PROMOTION.

THE APPLICATION OF THAT CONCLUSION IN FIRST LIEUTENANT GERMAN'S CASE RESULTED IN APPOINTING HIM TO THE TEMPORARY GRADE OF CAPTAIN ON THE RETIRED LIST PURPORTEDLY UNDER AUTHORITY OF CLAUSE (4), 10 U.S.C. 1372.

IN BRANDT V. UNITED STATES, CT.1CL. NO. 235-60, DECIDED OCTOBER 4, 1961, THE COURT HAD FOR CONSIDERATION THE FIFTH PROVISO IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, 37 U.S.C. 272 (D) (1952 USED.) (NOW FOUND IN CLAUSES (3) AND (4) OF 10 U.S.C. 1372). WAS HELD, AFTER REVIEWING CAREFULLY THE PRIOR HOLDING IN WILLIAMS V. UNITED STATES, 145 CT.1CL. 513 (1959), THAT THE ESTABLISHMENT OF FACTS INDICATING AT LEAST A DEGREE OF CONNECTION BETWEEN PHYSICAL EXAMINATION AND PROPOSED PROMOTION REMAINS REQUISITE TO A CAUSE OF ACTION UNDER THE STATUTORY PROVISION.

IN REACHING THAT CONCLUSION THE COURT FURTHER STATED IN THE DECISION OF OCTOBER 4, 1961: IN EFFECT PLAINTIFF ASKS THIS COURT TO HOLD THAT SOLELY BY VIRTUE OF THE FACT THAT PLAINTIFF WAS RETIRED FOR PHYSICAL DISABILITY AT A TIME WHEN HE WAS BEING CONSIDERED FOR PROMOTION, HE HAS MET THE REQUIREMENTS OF THE FIFTH PROVISO OF SECTION 402 (D), AND SHOULD THUS RECEIVE DISABILITY RETIREMENT PAY BASED ON THE HIGHER RANK TO WHICH HE WOULD HAVE BEEN PROMOTED HAD HE REMAINED IN THE SERVICE. THIS WE CANNOT DO. HAD CONGRESS INTENDED THE PROVISO TO OPERATE IN THAT MANNER WE BELIEVE IT WOULD HAVE STATED SO, RATHER THAN IMPOSING THE SPECIFIC REQUIREMENT EXPLICIT IN THE LANGUAGE OF THE STATUTE. SINCE IT DID NOT, WE MUST CONCLUDE THAT PLAINTIFF HAS NOT SATISFIED THE REQUIREMENTS OF THE FIFTH PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, AND IS THUS NOT ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY BASED ON THE (HIGHER) RANK OF CAPTAIN. PLAINTIFF HAS ACTUALLY SOUGHT TO HAVE THIS COURT EXTEND THE TENOR OF THE CASES DISTINGUISHED ABOVE ( FREDRICKSON V. UNITED STATES, 133 CT.1CL. 890 (1956); LEONARD V. UNITED STATES, 131 CT.1CL. 91 (1955); CLARK V. UNITED STATES, CT.1CL. 39-59, DECIDED DECEMBER 1, 1960, AND THE WILLIAMS CASE, 145 CT.1CL. 513) ONE STEP FURTHER, SO AS TO ELIMINATE THE REQUIREMENT OF A DEGREE OF CONNECTION BETWEEN PHYSICAL EXAMINATION AND PROMOTION FROM THE FIFTH PROVISO OF SECTION 402 (D).

COMPARE DECISIONS OF MARCH 7, 1962, IN KRATZ V. UNITED STATES, CT.1CL. NO. 347-59, AND WILLIS V. UNITED STATES, CT.1CL. NO. 255-60, INVOLVING THE PROVISIONS OF SECTION 507 (A) (7) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 893, 10 U.S.C. 599A (7) (1952 USED.), RELATING TO ARMY OFFICERS ON A RECOMMENDED LIST FOR PROMOTION WHO AT ANY TIME PRIOR TO SUCH PROMOTION ARE FOUND INCAPACITATED FOR SERVICE. ALSO, COMPARE BROZO V. UNITED STATES, CT.1CL. NO. 224-60, DECIDED THE SAME DATE, MARCH 7, 1962.

IT SEEMS CLEAR FROM THE LANGUAGE EMPLOYED AND THE CONCLUSION REACHED BY THE COURT IN THE BRANDT DECISION OF OCTOBER 4, 1961, THAT A DEFINITE DEGREE OF CONNECTION BETWEEN THE PHYSICAL EXAMINATION AND A PROSPECTIVE PROMOTION IS REQUIRED TO MEET THE CONDITIONS PRESCRIBED IN THE FIFTH PROVISO OF SECTION 402 (D) OF THE 1949 LAW, NOW CODIFIED IN CLAUSES (3) AND (4) OF 10 U.S.C. 1372. IN THE BRANDT CASE THE COURT POINTED OUT THAT THE PLAINTIFF HAD NOT ALLEGED ANYTHING IN HIS PETITION THAT WOULD ESTABLISH OR EVEN TEND TO INDICATE THAT HE EVER HAD A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH AFFECTING A PERMANENT OR TEMPORARY PROMOTION, NOR HAD HE ALLEGED ANY FACTS WHICH WOULD ESTABLISH THAT THE NAVAL AUTHORITIES WHO WERE CONSIDERING HIS RECOMMENDED PROMOTION TO THE GRADE OF CAPTAIN EVER MADE ANY INQUIRY INTO HIS PHYSICAL CONDITION (THUS DISTINGUISHING BRANDT'S STATUS FROM THAT OF THE PLAINTIFF IN THE WILLIAMS CASE), AND THAT NOWHERE HAD THERE BEEN PRESENTED ANY FACTS INDICATING ANY CONNECTION WHATEVER BETWEEN THE EXAMINATIONS WHICH WERE GIVEN TO BRANDT AND HIS SELECTION FOR PROMOTION. IN EFFECT, THE COURT WAS SIMPLY FOLLOWING THE RULE THAT ALL CASES ARISING UNDER THE ABOVE CITED STATUTORY PROVISIONS MUST BE CONSIDERED ON THEIR OWN MERITS FOR DETERMINATION WHETHER, IN THE PARTICULAR FACTS AND CIRCUMSTANCES, THE PHYSICAL EXAMINATION, IF ANY, RECEIVED BY THE INDIVIDUAL CONCERNED MAY REASONABLY BE VIEWED AS CONSTITUTING A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PROMOTION. SEE 40 COMP. GEN. 256. FIRST LIEUTENANT GERMAN WAS FOUND PHYSICALLY FIT FOR DUTY ON HIS ANNUAL PHYSICAL EXAMINATION IN THE MONTH OF SEPTEMBER 1961. IN OCTOBER 1961, UPON HIS SELECTION FOR PROMOTION TO THE TEMPORARY GRADE OF CAPTAIN, HIS NAME WAS PLACED ON THE PROMOTION LIST FOR THAT GRADE IN THE ORDER OF HIS RANK, NO. 316, AND AS PREVIOUSLY STATED HE WOULD HAVE BECOME ELIGIBLE FOR SUCH PROMOTION UPON THE OCCURRENCE OF A VACANCY IN THE GRADE OF CAPTAIN. YOUR LETTER FURTHER DISCLOSES THAT WHEN HE WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE AS OF MARCH 21, 1962, HE HAD BEEN NOMINATED FOR APPOINTMENT TO THE GRADE OF CAPTAIN, BUT THE SENATE HAD NOT REACHED OR CONFIRMED SUCH APPOINTMENT FOR THE REASON THAT AS OF SUCH DATE ONLY THE FIRST 224 FIRST LIEUTENANTS ON THE PROMOTION LIST "HAD BEEN PROMOTED, REMOVED FROM THE ROSTER, OR WERE ELIGIBLE FOR PROMOTION BECAUSE OF EXISTING VACANCIES IN THE GRADE OF CAPTAIN.'

THEREFORE, EVEN ADOPTING THE VIEW THAT UNDER THE PROVISIONS OF SECNAV INSTRUCTION 6120.2 OF JULY 17, 1961, THE MEDICAL TREATMENT AND PHYSICAL EXAMINATIONS GIVEN TO FIRST LIEUTENANT GERMAN IN MARCH 1962 CONSTITUTED HIS "MOST RECENTLY REPORTED PHYSICAL EXAMINATION IN CONJUNCTION WITH HIS RECORDS AND HIS DUTY STATUS," THERE STILL REMAINS THE FACT THAT HE WAS NOT THEN ELIGIBLE FOR PROMOTION, SINCE NO VACANCY IN THE GRADE OF CAPTAIN TO WHICH HE COULD HAVE BEEN PROMOTED HAD YET OCCURRED. HENCE, AND SINCE NO PHYSICAL EXAMINATION WAS "SPECIFICALLY ORDERED" AS PROVIDED IN PARAGRAPH 2 OF SECNAV INSTRUCTION 6120.2, THERE IS PERCEIVED NO PROPER BASIS TO CONSIDER HIS PHYSICAL EXAMINATION IN MARCH 1962 AS CONSTITUTING A "PROMOTION EXAMINATION" FOR THE PURPOSE OF CLAUSE (4) IN 10 U.S.C. 1372. ACCORDINGLY, IT IS OUR VIEW THAT THE HOSPITALIZATION, TREATMENT, AND THE RELATED PHYSICAL EXAMINATIONS GIVEN TO FIRST LIEUTENANT GERMAN IN MARCH 1962 WERE NOT CONNECTED WITH AND HAVE NO RELATION TO A PROMOTION EXAMINATION IN HIS CASE.

IN THE ABSENCE OF A PROMOTION PHYSICAL EXAMINATION WITHIN THE PURVIEW OF THE HOLDING OF THE COURT IN THE BRANDT DECISION OF OCTOBER 4, 1961, THE CONCLUSION IS INESCAPABLE THAT THE SPECIFIC REQUIREMENT PRESCRIBED IN CLAUSE (4), 10 U.S.C. 1372, HAS NOT BEEN MET. ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE NEGATIVE.