Evening star. [volume] (Washington, D.C.) 1854-1972, 1903-04-29
A QUESTION SETTLED
SECRETARY MOoDY'S DECISION AS
TO VACANCIES AND PROMOTIONS.
His Endorsement On the Opinion Of the
Judge Advocate General OF
the Navy.

Secretary Moody has settled question:
of great interest to the navy in the matter
of vacancies and promotions as result OF
recent legislation. The question is clearly
stated in an opinion rendered by Judge Ad-
vocate General Lemly, as follows:
In compliance with your verbal direction
I have considered the question presented
in a letter, dated Puget Sound, April 2,
1903, from Lieut.. Philip Williams, U. S. N,
as to whether the additional numbers au-
thorized in certain grades of the active list
of the navy by the act approved March 8,
1893, are to be treated as vacancies within
the meaning of sections and of the per-
sonnel act.
In it's ordinary significa ton, the word
vacancy" has reference to place or po-
sition previously existing and filled, and
which has in some manner, become vacant.
1t is not as ordinarily used, applicable to a
newly created place or position, but the
fact that 1t Is sometimes employed in the
latter sense renders it necessary to con-
slider whether it is so used in the statute in
question.
Effect of Section 8.
There seems to be nothing in section of
the personnel act throwing light upon the
matter, but it is apparently determined In
the first clause of section of that act
which reads:
That should 1t be found at the end Of
any fiscal year that the retirements pur-
suant to the provisions of law now in force,
the voluntary retirementS provided for In
this act, and casualties are not sufficlent to
cause the average vacancies enumerated
in section Of this act. the Secretary OF the
Navy shall convene a board of five
rear admirals. The board shall
then select, as soon as practicable after
the first day of July sufficient number of
officers from the before mentioned grades
as constituted on the Both day of June of
that year to cause the average vacancies
enumerated in section of this act.
Additional positions created by law are,
it seems to me- quite clearly not either "re
tirements" pursuant to any provisions of
law or Casualties" and 1t appears, there
fore, that they should not be counted In
making up the average vacancies contem-
plated by sections 8 and of lie personnel
act.
That this is the correct view of the mat
ter seems to be confirmed by the considera-
ton that the personnel act increased the
numbers in certain grades, which additional
positions were filled by promotions made. in
each case, from the grade below; but none
of these were counted as vacancies within
the contemplation of sections and 8. A
further consideration also tending to con-
firm the conclusion hereinbefore expressed
is we'll stated by the bureau of navigation
in the last paragraph of it's Endorsement
upon Lieutenant Williams letter. l. e., the
fact that these additional positions, while
providing immediate advancement for GER
tain officers, do not have permanent effect.
officers below those promoted under the
act of March 3, 1903, do not thereby re-
ceive such advancement as will place them
at an earlier date in the higher grades,
whereas vacancies caused by retirements
and casualties do so effect the advancement
of junior officers as to place them earlier
in the higher grades.
Since, therefore, the additional positions
created by the act of March 3, 1903, do not
have the effect of vacancies I am of opin-
ion that they should not be treated as such
within the meaning of sections and of
the personnel act.
Secretary Moody's Endorsement.
The action of Secretary Moody is shown
in his Endorsement of the Judge advocate
generals opinion, as follows:
THE within opinion of the judge advocate te
general Is approved. The act Of March 3,
1899, commonly known as the personnel
act, in section Z fixed the number compos-
ing the different grades of the active list
OIL the line of the navy for the purpose of
a certain number was fixed upon as a
minimum number Of officers who in some
way should be removed from the active list
from year to year. If this number Is not
reached in the ordinary way by death,
resignation and retirement under the pro-
visions of pre-exiSting law sufficient num-
ber of retrements is forced under the pro-
visions of sections and of said act to
bring the total number of retirements from
the service up to that prescribed by law.
The last naval appropriation act, while it
changed the number of officers in several
of the grades in the navy, in no way af-
fected I.le provision for retirement under
a nd u ~ fha