New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1898-10-02
Navy Department
Office Of the Judge Advocate-General,

Office Of the Judge Advocate General
September -. 1893.
Section 15o6 Of the Revised Statutes authorizes
advancements. not to exceed thirty numbers Tor
eminent and conspicuous conduct in battle or ex-
traordinary heroism," and Section 1501 provides
that II any officer so advanced is hereby thrown
standing the number of said grade may be full"
Two distinct methods OF procedure under these
memorandum The first is that OF making ad-
vancements simultaneously. Under this method
when number or officers are 10 be promoted Tor
conspicuous service the promotions are all made at
NO oflcers ~, ,,rorrtad ',nt those whose od'
vancement is intended. and If officers go from a
grade beyond the statutory limit which may there
by be brought about Is fully covered by the special
method Of making advancementS simultaneously
appears to be the simple and natural method. and
Announcements for services before Santiago were
made. (see letter 70 the President August 10. 1888:
No specific objection to this method is now urged
except that its Application might result III giving
two officers the number-a difficulty easily
provided against by care which should. of course.
always be exercised in apportioning such rewards.
The second method, that now brought 10 atten-
ton by the Bureau. proposes the making Of ad-
vanccments in the order Of seniority, and only
at a time. The rule Is thus laid down in the
Bureaus memorandum:
In making advancements the senior officer 70
he advanced should first take his new place. and
consequently. his new number. and all other Off
GERS affected by the advancement should take
their places and numbers respectively. If the
officer advanced goes from one grade TO another,
the promotion necessary to fill the vacancy should
senior officer to be advanced be moved up and
again let all other officers affected by his advance
ment take their new places and numbers. and so
on through the list"
seems proper ] am inclined to the opinion mat IL
will not bear critical scrutiny. What appears 10
be a fatal objection to the scheme Is stated by the
Bureau Itself in its memorandum, as follows
This rule In the cases of officers recently ad-
Vanced would work out condition which IS PROP
46y not antcPated e. the promotion Of caPan
Picking. as well as captain Hlgglnson 10 coHlilo-
dore. The promotion Of Captain Picking results
not only in placing him upon the I bd 0f 6 cGm 61
number. This Is a result not intended or ahtici-
pated. and not contemplated by the law which
stands behind the transaction, since the oircerS
thus affected are not advanced for eminent ana
herosm. but merely as an accident or incident or
the peculiar method advocated. Moreover, their
advancement results In "A list OF eleven commodores
lsee appendix to Bureaus memorandum coiuinh
e. Captain Picking standing as No II on that lit.
How can his presence there be justified under Sec
tons .N5 and l,50l unless mis- PROMOTION Is maze
for eminent and conspicuous conduct
II is true that the Bureaus memorandum ex-
plains this by stating that. taking up the cases OF
the officers to be promoted according to seniority
adyancements that of Commodore Sampson. it will
happen that for the moment the commodores hst
will consist OF nine officers only As ten are
allowed by law, the Bureau argues that the general
provisions governing promotion begin Immediately
list, is advanced accordingly 10 commodore. bring
ing the number In that grade up 10 ten The hIling
not according 10 the proposed plan, bar proceedings
under the special authority contained in Section
l.
vancel to that grade and placed above Captain lin
the case supposed Commodore Picking.
This process seems intricate. and invokes in the
first instance the special authority conferred by
Sections l. 800 and 1.Jo7 for making promotions for
eminent and conspicuous services. and makes one
al hereunder. II appears 10 cOntem-
plate stop after eaCh advancement. ana II nj any
time I'm the process state Of affairs Is brought
eb0ut unon which the ordinary rules Of promotion
VIII operate such rules are invoked to make one or
more promotions after which the special advance
ments are resumed. II many special promotions
are 10 be made. the result will be incidentally the
advancement Of a number OF officers whose promo
flor was not intended which will operate IN some
cases unnecessarily to enlarge certain grades be-
vond the limits prescribed by law. In the very In
stance under consideration the result OF the method
proposed would he &c place eleven officers upon
the list OF COMMODITIES, whereas By the simple and
natural method which actually adopted the
statutory limit OF ten commodores was not eX-
ceeded. ~,
Where two practicable methods are open to the
Department one OF which Will result In Overstep-
ming statutory restrictions while the other VIII
not II would seem quite clear that the Department
should give preference to the latter. From the
foregoing conside lions am of the opinion that
the method suggested by the Bureau OF Navigation
i'm tho memorandum Of August &C. 1898. is not sane
toned by law. IT. however doubt Is entertained
in the matter. Il would seem that upon so npor.
tant q question the opinion Of the highest legal
authority that ~ the Attorney General. should be
obtained .,,
Note-1he Secretary's injunction thai \ hill he
nrcDared by which the promotion or oinc"Ts
''iumpcd" by these advancements viii bo made ana
Ike difficulties will he avoided in future has not