#### BENJAMIN TAPPAN v. THE UNITED STATES.

[No. 33846.

Decided March 10, 1919.]

*On the Proofs.*

*Navy, retired pay; promotion.*— The act ol March 4, 1911, 36 Stat., 1267, which provides that if an officer of the Navy shall fail in his physical examination for promotion 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, does not authorize a retirement with a higher rank than the officer would have had if he had successfully passed his examination ; and the rank with which the officer is to be retired is not determined by the date of the action of the retiring board.

*Same.*— The fact that plaintiff was borne on the Navy Register as a rear admiral “ subject to examination and confirmation ” did not make him such, but indicated simply that he was eligible to become a rear admiral.

*The Reporter's*statement of the case:

*Mr. George A. King*for the plaintiff. *King & King*were on the briefs.

Under the provisions of the acts of March 3,1901, 31 Stat., 1108, and June 16,1906, 34 Stat., 296, Pear Admiral Tappan was carried in all grades as an additional number, subject to be promoted along with the officer next above him in the regular 18 numbers of rear admirals.

The Navy Register of every year shows more than the regular quota of rear admirals, the surplus consisting of those who by virtue of these and other provisions of law are carried as extra numbers.

By the act of March 3, 1899, Navy Personnel Act, section 7, it is provided, 30 Stat., 1005:

“ That each rear admiral embraced in the nine lower numbers of that grade shall receive the same pay and allowance as are now allowed a brigadier general in the Army.”

The other nine were to receive the pay of a major general.

The same distinction is retained in the act of May 13, 1908, establishing a new pay table for the Navy, 35 Stat., 127:

*77“ Hereafter all commissioned officers of the active list of the Navy shall receive the same pay and allowances according to rank and length of service, and the annual pay of each grade shall be as follows: For admiral, $13,500; rear admiral, first nine, $8,000; rear admiral, second nine, or commodore, $6,000; captain, $4,000,” etc.

The claimant was promoted in due course to the grade of captain, October 80, 1908, in which grade he served continuously on the active list in the performance of all duties appropriate to said grade. February 13, 1914, he became due by virtue of seniority for promotion to the grade of rear admiral, subject to examinations required by law. He was ordered to report for physical examination preliminary to promotion, February 13, 1914, and was found by the board of medical examiners not physically qualified to perform sea duty by reason of defective hearing contracted in line of duty. At the time he became due for promotion he was serving as commandant of the naval stations at OÍongapo and Cavite, Philippine Islands. He continued on that duty for the space of about two years after being found physically disqualified for promotion to the grade of rear admiral.

Meanwhile he was carried in the official Navy Registers for 1915 and 1916 in the list of rear admirals of the Navy with a notation opposite his name “ subject to examination and confirmation,” until at the time of his retirement, April 26, 1916, he stood No. 9 on the official list of rear admirals of the Navy, excluding extra numbers preceding him.

During all those two years of service in the Philippines he held the rank and drew the pay only of a captain in the Navy. He was finally ordered February 11, 1916, to report before a naval retiring board at the navy yard, Washington, D. C., March 1, 1916. This board found him incapacitated for active duty by reason of defective hearing in each ear contracted in line of duty. He was therefore transferred to the retired list of officers of the Navy April 26, 1916. If at that date he had been found physically qualified for promotion he would have been promoted and would at once have taken rank among the first nine *78rear admirals, and would from that date have been paid at the rate of $8,000 per annum.

In accordance with the acts of March 4, 1911, 36 Stats., 1267 and 1854, he was retired with the rank of rear admiral and received a commission in accordance with that rank as a *“*rear admiral in the Navy on the retired list, from the 26th day of April, in the year 1916, in the sendee of the United States.”

At all times during the service of this officer and up to the date of his retirement, promotion in the Navy was strictly according to seniority. By Revised Statute—

“ Sec. 1458. The next officer in rank shall be promoted to the place of a retired officer, according to the established rules of the service; and the same rule of promotion shall be applied successively to the vacancies consequent upon the retirement of an officer.”

Seniority was thus the fixed rule of the service. If the claimant had been promoted he would have taken rank at once in the upper pay grade of rear admiral. A physical disability'' had up to that time formed the sole obstacle to his promotion. If promoted he would at once have taken the advanced position among the rear admirals to which his seniority entitled him to be promoted. *Downes*v. *United States,*52 C. Cls., 237.

His commission did not fix his grade for pay purposes. Rear admirals, whether on the active or retired list, receive commissions giving them only the rank of rear admiral without specifying whether they are of the first or second'nine. Which of these two pay grades they are in is merely a question of pay.

It has been decided by the comptroller that under these acts an officer who is carried as an extra number on account of eminent and conspicuous conduct in battle is entitled to advancement from the second to the first nine along with the officer preceding him. 8 Comp. Dec., 689. This decision was rendered upon the language of the act of March 3,1901, 31 Stat., 1108, which says:

“ Each such officer shall hereafter be promoted in due course contemporaneously with and to take rank next after the officer immediately above him.”

*79Had this officer in the spring of 1916 passed his physical examination he would have become a rear admiral of the first nine. That would have been, in the language of the statute, “ the rank to which his seniority entitled him to be promoted.”

The law does not say he shall be retired with the next higher rank or grade. It is “ with the rank to which his seniority entitled him to be promoted.”

He should therefore upon being appointed and commissioned a rear admiral on the retired list be treated for pay purposes as one of the first nine rear admirals.

The a'ct of March 4, 1911, *supra,*here intervenes and says that' if an officer fails in his physical examination by reason of physical disability contracted in the line of duty he shall be retired with the same rank that he would have taken on the active list if he had successfully passed his physical examination.

When therefore we ascertain what grade or rank the officer would have been entitled to on the active list, if at the date of retirement, he had been promoted, instead of being retired, we have the standard prescribed by statute for ascertaining his place on the retired list. As his place on the active list would have been in the senior pay grade of rear admirals, so too must his retirement be in the senior pay grade. Only thus does he obtain any benefit for two years of faithful service as commandant of tropical naval stations with the rank of captain. Meanwhile the time had come when officers junior to himself were beginning to be promoted to be rear admirals. His seniority to those officers would have given him a position among the first nine on the active list. So must it also on the retired list.

The language of the act of March 4, 1911, providing that an officer retired for physical disability “ shall be retired with the rank to which his seniority entitled him to be promoted” is copied from the xlrmy act of October 1, 1890, 25 Stat., 562.

The Attorney General says with reference to the provisions of that act (27 Opins. Attys. Gen., 212, 214) :

“ In the case, however, of the officers retired under the provision of the act of 1890, it can hardly be said with pro*80priety that their promotion at the moment of retirement is a favor. They would have been entitled to the same promotion on the active list but for causes creditable to them and establishing a claim to the country’s gratitude which operate to prevent such promotion. By giving the promotion at the moment of or as an incident to retirement the Government is just rather than generous,” etc.

In *Cloud*v. *United States,*48 C. Cis., 69, 88, this court said:

“ The act of October 1, 1890, *supra,,*provides that the officer ‘ shall be retired with the rank to which his seniority entitled him to be promoted.’ General Orders, No. 41, of 1897, carried this statute into effect by saying that an officer reported by a retiring board as incapacitated would be retired with the rank to which his seniority entitled him whenever a vacancy occurred that would otherwise result in promotion on the active list.”

And again, p. 90:

“When incapacitated by reason of physical disability they were necessarily retired by operation of law in that rank to which the officer’s seniority entitled him to be promoted if the physical disability was contracted in line of duty.”

Thus the purpose of the enactment, first of the Army act of 1890, and later of the Navy act of 1911, was to give a retired officer, whose honorable disability contracted in the service of the United States prevented him from rendering further active service, as good a place on the retired list as he would have had on the active list if promoted.

This officer, if promoted April 26, 1916, instead of being retired would have become, immediately upon promotion, entitled to the pay of a rear admiral of the first nine, as that was the rank to which his seniority entitled him to be promoted.

*Mr. Richard P. Whiteley,*with whom was *Mr. Assistant Attorney General Huston*Thompson, for the defendants.

Campbell, *Chief Justice,*

reviewing the facts found to be established, delivered the opinion of the court:

The plaintiff was a captain in the Navy, and became eligible for promotion to the grade of rear admiral, subject to the examinations for physical, mental, moral, and pro*81fessional qualifications prescribed by law. He was examined by a board of medical examiners on February 18,1914. The board reported that he was not physically qualified to perform sea duty because of defective hearing contracted in the line of duty, and recommended him for promotion in accordance with the provisions of section 1494, Revised Statutes. This section provides for the case of an officer whose physical disqualification is found by the medical board to have been occasioned by wounds received in the line of his duties, and that such wounds do not incapacitate him for other duties in the grade to which he is to be promoted. The President disapproved the recommendation of said board, and directed that Capt. Tappan be ordered to appear before a naval retiring board, in conformity with Title XV, chapter 3, of the Revised Statutes. It is there provided that where a retiring board finds that an officer is incapacitated for active service, and that his incapacity is the result of an incident of the service, such officer shall, if the decision be approved by the President, be retired from active service, with retired pay, as allowed by chapter 8 of Title XV. It is also provided by section 1451 that officers retired from active service shall be placed on the retired list of officers of the grades to which they belonged, respectively, at the time of their retirement, and continue to be borne on the Navy Register. It would follow from these statutes that the plaintiff would have been retired in the grade of captain, and with that rank, were it not for the fact that the act of March 4,1911, 36 Stat., 1267, provides:

> “ Hereafter, if any officer of the United States Navy shall fail in his physical examination for promotion 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.”

It is now contended in his behalf that under this later act the plaintiff is entitled to the pay and allowances of a rear admiral of the first nine instead of the pay and allowances of a rear admiral of the second nine. The act of March 4, 1911, remedies the situation in which an officer was placed under the preexisting law who failed in his physical exami*82nation for promotion owing to a disability contracted in the line of duty. After serving through a grade and becoming eligible to promotion to the next higher grade, his failure to stand the physical examination, though it was occasioned by a disability contracted in the line of duty, yet required that he be retired in the grade through which he had served. The act of 1911 authorizes his retirement with the rank, and the consequent higher pay, of the grade to which he is eligible to promotion, and for promotion to which he is being examined. By its terms that act relates to the physical examination of an officer for promotion and to the finding of an incapacity for service by reason of physical disability contracted in the line of duty. The conditions, therefore, under which an officer secures the benefit of the act of 1911 are (1) the failure in his physical examination for promotion, and (2) a finding that his incapacity for service was occasioned by physical disability contracted in the line of duty. These conditions prevailing, he becomes entitled, on his subsequent retirement, to be retired with the rank to which his seniority entitled him to be promoted when he was examined for promotion. The act does not authorize a retirement with a higher rank than he would have had if he had successfully passed his examination.

If the plaintiff had passed his examinations he would have entered in the second nine of the grade of rear admiral and would have received the pay incident to a rear admiral of the second nine. *Gibson’s*case, 194 U. S., 182. Having failed in his physical examination, the statute authorizes his retirement with the rank of rear admiral and the pay which he would have received if he had successfully passed the examination. The rank with which the officer is to be retired is not determined by the date of the action of the retiring board. The language of the act is that he shall be retired with the rank to which his seniority “ entitled,” not with the rank to which his seniority entitles. The reference, therefore, must be to the former examination, and not to the action bj^ the retiring board. And this is the more reasonable view and may be illustrated as follows r

Suppose an officer, a captain in the Navy, is examined and found to have a physical disability contracted in the line of *83duty, so that his promotion is arrested and he is at once retired. In that case he is retired with the rank of rear admiral and in the second nine. Suppose the next officer to him has exactly the same history, but the retiring board does not act for some time, and until such a time that, if the officer’s seniority alone be regarded, he might be eligible to the first nine. Can it reasonably be said of the two officers, coming up at practically the same time for examination, 'having the same history, both retired for the same cause, that the one can be retired in the second nine and the other in the first nine ? Or, again, suppose some officer lower than that of captain becomes eligible for promotion and fails for like cause. Would the failure of the retiring board to act and retire him enable him to pass over the grade of captain and be retired with the rank of a rear admiral ?

It is urged that the plaintiff was carried on the official register as a rear admiral, “ subject to examination and confirmation,” but manifestly the plaintiff was not a rear admiral; nor do we understand the register to be subject to that construction. The notation following his name indicated simply that he was eligible to be a rear admiral. The act authorizing his retirement with the rank of a rear admiral did not make him a rear admiral. *Woods*case, 15 C. Cls., 151, 161; affirmed 107 U. S., 414, 417.

The plaintiff having received all the compensation to which he was entitled the petition must be dismissed, and it is so ordered.

*Judge*Hay, *Judge*Downey, and *Judge*Booth concur.