#### JOHN LAWLESS, Jr., v. THE UNITED STATES

[No. B-50.

Decided February 4, 1924]

*On the Proofs*

*Navy pay: Naval Reserve Force; provisional appointment.*— The provisional appointment oí an officer of the Naval Reserve Force as lieutenant, junior grade, in the absence of the examination and recommendation of, the board provided for by the act of August 29, 1916, 39 Stat. 587, for such appointment, commission, or promotion, and a finding by a board of medical officers of physical fitness therefor, is not sufficient to bring hint within the provisions of the act of March 4, 1913, 37 Stat. 892. nor to constitute him an officer.

*The Reporter's*statement of the case:

*Mr. George A. King*for the plaintiff. *King & King*viere on the brief.

*Mr. John G.*Ewing, with whom was *Mr. Assistant Attor ney General Robert Ii.*Lovett, for the defendant.

The facts of the case are sufficiently set forth in the memorandum by the court.

memorandum by the court

The plaintiff was enrolled in the United States Naval Reserve Force April 30, 1917. On February 11, 1918, he was given provisional rank of ensign in the Reserve Force, class 4, for general service, and he executed the oath of office. He served on several vessels. In January, 1919, he was transferred to class 2 as of July 1, 1918, and was assigned a running mate in the regular Navy as of May 22, *2251918. On March. 18, 1919, he was given the provisional rank of lieutenant (junior grade) in class 2, to rank from September 21, 1918, and on April 7 executed oath and acceptance as provisional lieutenant (junior grade), class 2, United States Naval Reserve Force. On April 14, 1919, he was relieved from active duty. On February 16, 1920, he was given confirmed commission as ensign, class 2, United States Naval Reserve Force. He was reenrolled in class 2 provisional lieutenant (junior grade) August 1, 1921.

He sues for the pay and allowances of lieutenant (junior grade) from September 21, 1918, to April 7, 1919, predicating his claim upon the act of March 4, 1913, 37 Stat. 892, which provides that all officers of the Navy 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. The advancement must be “ pursuant to law.” See *Hooper*case, 53 C. Cls. 90, 98, 100, 301. The statute contemplates “ officers ” and a duly authorized commission which fixes a date.

Plaintiff was a member of the Naval Reserve Force. See act of August 29, 1916, 39 Stat. 587. This act provides that no person shall be appointed or commissioned as an officer in any rank in any class of the Naval Reserve Force or promoted to a higher rank therein unless he shall have been examined and recommended for such appointment, commission, or promotion by a designated board, nor until he shall have been found physically qualified by a board of Medical officers. The plaintiff’s commission as ensign was given in February, 1920. His provisional appointment as ensign and his provisional rank of lieutenant (junior grade) in the absence of the examinations required by the act above mentioned are not sufficient to bring him within the meaning of the act of March 4, 1913, or to constitute him an officer.

The petition is dismissed.