PAY OF MIDSHIPMAN PROMOTED TO ENSIGN AFTER SIX MONTHS FROM DATE OF GRADUATION.

A midshipman who, upon completion of the prescribed course at the Naval Academy, was found qualified for final graduation but physically disqualified for promotion to ensign, and who finally passed such physical examination about fifteen months later and then commissioned ensign to rank from the date of the completion of the prescribed course, was graduated with his class, and as he was not commissioned an ensign within six months from the date of such graduation, does not come under the terms of the act of March 3, 1893, and therefore is not entitled to the pay and allowances of an ensign from the date he takes rank as stated in his commission.

Decision by Assistant Comptroller Mitchell, May 17, 1910.

The Auditor for the Navy Department has reported for approval, disapproval, or modification, his decision of April 22, 1910, as follows:

"Garret L. Schuyler has presented to this office a claim for pay and allowances as an ensign in the Navy from September 13, 1908, to December 31, 1909. The facts are as follows:

"Mr. Schuyler was appointed a midshipman in the Navy June 12, 1903, graduated from the Naval Academy on September 12, 1908. He was commissioned an ensign in the Navy from September 13, 1908, accepted his appointment, and executed the required oath of office on February 3, 1910.' "In reply to an inquiry from this office the Bureau of Navigation, under date of March 21, 1910, stated:

"The bureau informs you that Ensign Garret L. Schuyler, U. S. Navy, was ordered to report for examination for promotion to ensign on September 14, 1908, the examination lasting for several days thereafter; he was found physically disqualified at that time, and continued in the Navy as a midshipman until he finally qualified physically on January 10, 1910.'

"On April 7, 1910, in reply to a letter from this office the Bureau of Navigation stated:

666*

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With reference to the bureau's letter of February 14, 1910, and March 21, 1910, you are advised that the physical examination of Ensign (then midshipman) Garret L. Schuyler, U. S. Navy, held January 10, 1910, was his final examination for graduation from the Naval Academy, and he was commissioned in February, 1910, as an ensign in the Navy, within six months from said date of final graduation from the Naval Academy within the meaning of the law referred to in your letter.'

"The clause in the naval appropriation act of March 3, 1893 (27 Stat., 716), reads as follows:

"And every naval cadet or cadet engineer who has heretofore graduated or may hereafter graduate from the Naval Academy, and who has been or may hereafter be commissioned within six months after such graduation an officer in the Navy or Marine Corps of the United States, under the laws appointing such graduates to the Navy or Marine Corps, shall be allowed the pay of the grade in which he may be so commissioned from the date he takes rank as stated in his commission to the date of qualification and acceptance of his commission;

* *

"From June 10, 1909, to the date he was commissioned as ensign, Mr. Schuyler was on duty in the Bureau of Ordnance and at the naval station, Newport, R. I., and received the pay of a midshipman at the rate of $1.400 per annum.

It appearing that at the time Ensign Schuyler was ordered to report for examination for promotion to ensign, September 14, 1908, he was found physically disqualified at that time, and continued in the Navy as a midshipman until finally qualified. I am of opinion, and so decide, that his final examination, January 10, 1910, was his final examination from the Naval Academy within the meaning of the act of March 3, 1893, and having taken the oath of office on February 3, 1910, he is entitled to the pay and allowances of an ensign from the date he takes rank, as stated in his commission, from September 13, 1908. He is chargeable with all pay and allowances which he may have received during said period * * *"

It appears that Midshipman Schuyler completed the six years' course at the Naval Academy on September 12, 1908. He was ordered to take the examination for final graduation and to be examined physically on September 14, 1908. He was found proficient by the academic board, and deficient by the medical examining board, but was continued in the service until it could be ascertained whether his disability was of a permanent or temporary nature. He finally passed his physical examination on January 10, 1910, and was appointed ensign in February, 1910.

The question presented is whether he graduated with his class at the termination of his six years' course, or at the time he finally passed his physical examination on January 10, 1910.

Paragraph 167 of the Regulations of the United States Naval Academy, 1909, provides:

"No midshipman shall pass from a lower to a higher class, perform the two years' service afloat, or be appointed in the lower grades of any branch of the service until he shall have been examined by a board of not less than three medical officers of the Navy and pronounced physically qualified to perform all his duties

* *

Paragraph 169 of said regulations enumerates the subjects which the examination for final graduation shall embrace, but such enumeration does not include a physical examination.

It would seem therefore that the successful passing of a physical examination is not a prerequisite to the final graduation of a midshipman, but is merely a condition precedent to his promotion or appointment in the lowest grades of the line of the Navy and Marine Corps. (See Potter v. United States, 34 Ct. Cls., 13.)

I am therefore of opinion that Midshipman Schuyler finally graduated with his class at the termination of his six years' course, September 12, 1908, and as he was not appointed ensign within six months after such graduation he does not come under the terms of the act of March 3, 1893, supra.

The decision of the Auditor is disapproved.

CIVILIAN MEDICAL TREATMENT FOR OFFICERS OF THE ARMY.

Civilian medical treatment for officers and enlisted men of the Army can only be authorized and paid for at public expense when members of the medical department of the Army are not available for proper treatment.

When it appears that at the time civilian medical services were rendered an Army officer there were three Army surgeons available, and the chief surgeon states that none were competent to treat the particular case, but the post surgeon and the Surgeon-General of the Army express a contrary view, there is no authority for the payment of a claim on account of such services.

Decision by Assistant Comptroller Mitchell, May 18, 1910.

Dr. Floyd W. McRae, of Atlanta, Ga., appealed May 11, 1910, from the disallowance by the Auditor for the War De

partment by settlement No. 162119, dated January 11, 1910, of his claim for medical attendance rendered Maj. Edward Chynoweth, Seventeenth U. S. Infantry, July 25 and 26,

1909.

The Auditor disallowed the claim for reasons stated as follows:

"An officer is not entitled to treatment by civilian physician at government expense, except when the services of a medical officer are not available. In this case the evidence shows that the services of the medical officers on duty at Fort McPherson were available; that the officers were thoroughly competent and the hospital facilities ample. Under the circumstances the expense incurred can not be considered a proper charge against the United States."

The act making appropriations for the Army for the fiscal year 1910 provides under Medical Department (35 Stat., 748):

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* * for medical care and treatment not otherwise provided for, including care and subsistence in private hospitals, of officers, when entitled thereto by law, regulation, or contract; for the pay of civilian physicians employed to examine physically applicants for enlistment and enlisted men and to render other professional services from time to time under proper authority; ***"

Regulations relating to medical treatment of officers of the Army by civilian physicians are paragraphs 1493 and 1495, Army Regulations, 1908, which, so far as necessary for consideration in this case, are as follows:

* * *

and

"1493. When medical treatment, including medicine, nursing, and hospital care, is required by an officer, * * * on duty with any command or detachment, can not otherwise be had, the commanding officer may employ the necessary civilian service to furnish the same, and just accounts therefor will be paid by the Medical Department. Accounts for consultation will not be

allowed.

*

"1495. Accounts for medical attendance will be stated in the full name of the physician, and will give his address. * * * The charges must not exceed the usual local rate or the maximum compensation authorized by regulations. Any unusual charge must be fully explained. The date and nature of surgical operations with the particular charge therefor will be indicated; also the dates of after attendance, if any, rendered without additional charge in sur

52888°-vor. 16-10-47

gical cases.

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The responsible officer will certify

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to the correctness, stating that the officers,

duty,

* *

*

*

were on

* and state why it was impossible to secure

the services of an Army surgeon. * *

Paragraph 1496 provides:

"The compensation allowed to civilian physicians for ordinary medical attendance on public account at garrisoned posts or camps will not exceed the following rates,

Accounts arising at posts or camps under exceptional circumstances, all accounts arising at other places, and accounts for special or surgical services will be allowed at reasonable rates approved by the Surgeon-General."

The bill has not been approved by the Surgeon-General. Major Chynoweth, the officer treated, was on duty at Fort McPherson, Ga.

The claim is for $250, and the disease or disability treated is described as "Laparotomy-perforated gall bladder; general peritonitis; drains inserted, allowing the escape of large quantities of bile-stained fluid." It is approved by Blair D. Taylor, chief surgeon, and bears certificates of Lieut. E. L. Napier, M. R. C., U. S. Army, the attending surgeon. He does not, however, certify "why it was impossible to secure the services of an Army surgeon," as the form provided, but changed it to read as follows:

66 * * * and that the services of a medical officer or contract surgeon of the Army were not obtained because the services of Dr. F. W. McRae were requested by Major Chynoweth's family."

The chief surgeon, in forwarding the vouchers December 17, 1909, states in an indorsement:

"While these vouchers are not entirely satisfactory to the chief surgeon, they are approved for the reason that there is no doubt that Major Chynoweth's condition called for expert surgical assistance, which could not be obtained among the medical officers of the Army available at the time."

The Surgeon-General of the Army makes the following indorsement in forwarding the vouchers to the Auditor:

66**** I am unable to concur in the chief surgeon's view expressed in the preceding indorsement that this case called for surgical assistance which could not be obtained among the medical officers available at the time.' In my