#### ALEXANDER S. WADSWORTH, JR., v. THE UNITED STATES.

[No. 34015.

Decided May 24, 1920.]

*On the Proofs.*

*Wavy -pay; promotion; statutory construction.*— An ensign in the Navy entitled to promotion to the grade of junior lieutenant on January 31, 1910, successfully passed his examination as required by section 1496 of the Revised Statutes, but was found temporarily disqualified by the medical board acting under section 1493 of the Revised Statutes. Having after-wards successfully passed the medical examination, he is entitled to the pay of lieutenant, junior grade, from the date when he was eligible to promotion to that grade.

*The Reporter's*statement of the case:

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

*Mr. Richard P. Whiteley,*with whom was *Mr. Assistant Attorney General Frank*Davis, *jr.,*for the defendants.

The following are the facts of the case as found by the court:

*384I. The plaintiff, Alexander S. Wadsworth, jr., was appointed a naval cadet (title now changed to midshipman) September 22, 1900, and has served continuously in the United States Navy on active duty since that date.

January 81,1907, he was appointed an ensign and became entitled to promotion to lieutenant, junior grade, January 31, 1910, by virtue of three years’ service in the Navy in the grade of ensign.

September 14,1910, he was ordered to proceed to the navy yard, Washington, D. C., and to report to the president of the naval examining board at that place on October 3, 1910, for examination preliminary to promotion, as required by section 1496 of the Revised Statutes; and upon completion of said examination to report to the president of the naval medical examining board for examination required by section 1493 of the Revised Statutes. These orders were revoked September 29, 1910.

September 28, 1910, he was ordered to proceed to Washington, D. C., and report to the commandant of the navy yard at that place and, when directed, to the officer in command of the Naval Medical School Hospital for observation and treatment.

November 2, 1910, having been discharged from treatment in the Naval Medical School Hospital, Washington, D. C., he was ordered to report to the president of the naval examining board on November 7, 1910, for examination preliminary to promotion as required by section 1496 of the Revised Statutes, and upon completion of said examination to report to the president of the’ naval medical examining board for examination required by section 1493 of the Revised Statutes.

November 11,1910, the naval examining board found him mentally, morally, and professionally qualified for promotion to the next higher grade,, and on November 12, 1910, the naval medical examining board found him not jffiysically qualified to perform efficiently all the duties at sea, owing to a highly nervous condition and a very rapid pulse, and recommended that he be further examined physically in three months in order to ascertain the extent of his incapacity. The findings and recommendations of both *385boards were approved by the President of the United States on December 12, 1910, and in accordance with the recommendations of the board of medical examiners he was ordered to be physically reexamined preliminary to promotion about March 12, 1911, or as soon thereafter as practicable.

March 15,1911, he was ordered to proceed to Washington, D. C., and report to the president of the naval medical examining board at the navy yard at that place on March 27, 1911, for physical reexamination preliminary to promotion.

March 27, 1911, he was reexamined by the naval medical examining board preliminary to promotion to the grade of lieutenant, junior grade, and found physically qualified for promotion to that grade.

March 28,1911, he was ordered to proceed to Washington, D. C., on April 3, 1911, for examination for promotion to lieutenant.

May 2, 1911, he was commissioned a lieutenant, junior grade, to rank from January 31, 1910.

May 18, 1911, he was commissioned lieutenant to rank from March 4,1911, to fill a vacancy which occurred on that date.

II. By a decision of the accounting officers pay as lieutenant, junior grade, has been denied to him from January 31, 1910, date of rank as given him in his commission; and he has been paid only as an ensign from that date until March 4, 1911, since which date he has been paid as a lieutenant.

If entitled to be paid as a lieutenant, junior grade, from the date stated in his commission, January 31, 1910, until March 4, 1911, he would receive an amount over and above the pay he received as an ensign aggregating $404.71.

Per Curiam :

In this case the officer was eligible for promotion, successfully passed his professional examination, but failed in his physical examination by reason of an ailment contracted in the line of duty, which was evidently regarded by the board of medical examiners as temporary, because their report stated that he was not physically qualified to perform *386all his duties at sea owing to a highly .nervous condition and very rapid pulse, but further stated: “We recommend that he be. further examined physically in three months in order to ascertain the extent of his incapacity.” There was no recommendation that the officer be not promoted, but reporting the fact, as they ascertained it, the board recommended another examination in a stated time. The President’s approval of the report carried with it an approval of the recommendation.

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 C. Cls., 237, 242, than that of Hooper, 53 C. Cls., 90.

The plaintiff is entitled to judgment for the difference in pay, amounting to the sum of $404.71.