[C. M. O. 37-1918]

they are also maintained in the Naval Home and regardless of the fact that they may be receiving, in addition, a pension under general pension laws." Upon the above facts the questions which had arisen and with respect to which the Interior Department desired his advice, were stated by the Attorney General as follows:

"(1) Are the money benefits provided for in section 4756, Revised Statutes, within the purview of the word 'pension' in section 4813, Revised Statutes? "(2) Are the money benefits provided for in section 4756, Revised Statutes, within the purview of the term 'pensions' as used in the Naval Appropriation Act of June 30, 1914 (38 Stat. 392, 398), which provided ** * * That the pensions of beneficiaries of the Naval Home shall be disposed of in the same manner as prescribed for inmates of the Soldiers' Home, * under such regulations as the Secretary of the Navy may prescribe * "(3) Do such money benefits inure to the grantees concurrently with maintenance in the Naval Home?

[P. 23] "(4) Can allowances under section 4756, Revised Statutes, or section 4757, Revised Statutes, and a pension under general pension laws both be paid in view of section 4715, Revised Statutes?

"(5) Should allowances granted by the Secretary of the Navy under section 4757, Revised Statutes, to persons who are inmates of the Naval Home be paid as at present directly to the beneficiaries (as not being within the purview of section 4813, Revised Statutes), or should they be paid, pursuant to section 4813 and the act of June 30, 1914, to the governor of the Naval Home for the use of the grantees?"

The conclusions of the Attorney General, sustaining the views of the Judge Advocate General upon the above questions, were recapitulated in his opinion as follows:

"1. That the money benefits provided for in section 4756 are within the purview of the word 'pension' in section 4813, that they are also within the purview of the word 'pensions' in the pertinent provision of the Naval Appropriation Act of June 30, 1914 (38 Stat. 392, 398), and in view of that act inure to the grantees concurrently with maintenance in the Naval Home :

"2. That allowances under sections 4756 and 4757 do not fall within the prohibition of section 4715 and may therefore be paid in addition to a pension under general pension laws.

"3. That allowances under section 4757 are 'pensions' within the meaning of section 4813, Revised Statutes, and the act of June 30, 1914, above referred to, and should therefore be disposed of, in cases where the beneficiaries are inmates of the Naval Home, in the manner prescribed by that act."

LINE OF DUTY: DEATH IN.

A certain enlisted man contracted syphilis not in line of duty and as a result of his own misconduct.

Five doses of salvarsan were administered by proper medical authority, and the patient died from salvarsan poisoning. In the opinion of the medical officer in charge of the case, the disease (syphilis) would not have caused death at the time death did occur.

It was held that since the patient's death was the direct and immediate result of the treament administered to him by proper medical authority, that the death of the deceased occurred in line of duty. It is immaterial that the disease for which he was being treated was contracted not in line of duty and was acquired as a result of his own misconduct, the fact being established that death was not the result of the disease, but of the medical treatment for the disease (File 26543-213, J. A. G., Apr. 29, 1918).

[P. 24] MEDICAL CORPS PERSONNEL: DISTRIBUTION OF, IN LOWER GRADES. The conclusions of the Judge Advocate General, in regard to distribution in the lower grades of the Pay Corps, reached in his opinion of March 20, 1918

[C. M. O. 37-1918]

(File 27223-37, Bul. 30, 1918, p. 30), apply with equal force to the Medical Corps, in which the distribution of the commissioned personnel in the grades below medical inspector with the rank of commander is 872 percent, under the act of August 29, 1916, which provides for no distribution between such grades except that "nothing contained herein shall be held to reduce below that heretofore authorized by law the number of officers in any grade or rank in the Staff Corps."

The act of March 3, 1903 (32 Stat. 1197), provided that "the grades of the active list of the Navy heretofore designated shall be so increased that there shall be * * * thirty additional surgeons with the rank of lieutenant commander, in all eighty-five; one hundred and twenty additional passed assistant and assistant surgeons, with the rank, respectively, of lieutenant, and lieutenant (Junior grade), in all two hundred and thirty."

The act of June 12, 1916, section 4 (39 Stat. 224), authorized a further increase of one surgeon and two passed assistant surgeons; and the act of August 29, 1916, increased the number of surgeons by one. Accordingly in the distribution of medical officers between the grades below medical inspector under the act of August 29, 1916, the following numbers should be regarded as established by law and not to be reduced in consequence of anything contained in the act of August 29, 1916: 87 in the grade of surgeon, and 232 in the grades of passed assistant and assistant surgeon.

There is no fixed distribution between the grades of passed assistant and assistant surgeon except for the specific authorization of two passed assistant surgeons contained in the act of June 12, 1916, section 4 above cited (File 2723337. J. A. G., Apr. 6, 1918).

NAME: RIGHTS OF PARTY CHANGING.

A man who had served an enlistment in the Navy under the name of W G------, submitted affidavits to show that his surname was W------, which name he claimed he was entitled to bear by reason of it being his stepfather's name, and requested certain reenlistment pay and medals in the latter name.

Upon the question as to what effect the remarriage of the mother of said man, during his minority, had upon the name which he was legally entitled to bear, the Acting Judge Advocate General expressed the following views:

A stepson does not necessarily take his stepfather's name. In a previous case, where the mother of a former enlisted man remarried, and he had requested that the Department's records be changed so that he would be known under his stepfather's name, and that a new [P. 25] discharge be issued to him under such assumed name, the request was denied. (See File 24368-14, J. A. G., Apr. 24, 1915; C. M. O. 16, 1915, 6; Naval Dig., 1916, p. 395.)

A man has the right to change his name without legal proceedings, and the name thus assumed is as much his legal name, for all purposes, as though he had borne that name from birth (18 A. & E. Ann. Cas. 701, 703; Naval Dig., 1916, p. 394). Yet there is no duty on the Department to change his name on its records, and the Department has heretofore uniformly declined to make such changes except in cases where legal steps to effect the change of name have been taken by the interested party, or in pursuance of statutory authority (Naval Dig., 1916, pp. 395–396).

The question of whether or not the change should be made appears, then, to be one of administrative policy; it may be sufficient in this case to file the aforementioned affidavits with the record of said W G alias W W------; and he may be paid such bounties or rewards as he may be entitled to, under either name (File 24368-24, J. A. G., Apr. 29, 1918).

OATHS: NAVAL TRAINING CAMP IS NAVAL STATION FOR CERTAIN PURPOSES.

It is the opinion of the Judge Advocate General that an officer of the National Naval Volunteers is authorized to administer an oath of office to an officer in the Regular service when said officer of the National Naval Volunteers is serving in one of the capacities enumerated in the act of March 3, 1917, which provides:

"That judges advocate of naval general courts-martial and courts of inquiry, and all commanders in chief of naval squadrons, commandants of

[C. M. O. 37-1918]

navy yards and stations, officers commanding vessels of the Navy, and recruiting officers of the Navy, and the adjutant and inspector, assistants adjutant and inspector, commanding officers, recruiting officers of the Marine Corps, and such other officers of the Regular Navy and Marine Corps, of the Naval Reserve Force, of the Marine Corps Reserve, and of the National Naval Volunteers as may be hereafter designated by the Secretary of the Navy, be, and they are hereby, authorized to administer oaths for the purposes of the administration of naval justice and for other purposes of naval administration."

*

And further, an officer of the National Naval Volunteers, serving as commanding officer of a United States naval training camp, is, under I-5354, Naval Instructions, 1913, defining a naval station to be " any establishment for training under the control of the Navy," the commandant of a naval station, and as such may execute acceptances and oaths of office for men who are promoted to officer's rank in the regular branch of the service (File 19037-74, J. A. G., Apr. 8, 1918).

[P. 26] PROMOTION: EFFECT OF TEMPORARY APPOINTEE ACCEPTING COMMISSION

IN LOWER GRADE.

A warrant officer, having been temporarily appointed a lieutenant (junior grade) under the provisions of the act of May 22, 1917, desired information as to whether he could accept an appointment as an eusign in the Navy without suffering a reduction from the rank of lieutenant (junior grade).

A consideration of the specific provisions of the act of May 22, 1917, and its general tenor, establish very clearly the intent of Congress that no officer of the naval service shall lose either rank, emoluments, or right to promotion by reason of anything contained in said act or by reason of the acceptance of temporary promotion in accordance with its provisions. The officers and enlisted men in the naval service who are advanced in accordance with the provisions of said act have a dual status in the Navy-their permanent enlistment, warrant, or commission, as the case may be, remaining dormant until the termination of their temporary commissions or warrants.

If the officer in question is actually commissioned an ensign in the permanent Navy prior to the termination of his temporary appointment, he will, of course, render no service as an ensign until the termination of his temporary appointment as lieutenant (junior grade), at which time he will revert to the grade of ensign or to any higher grade to which he may in the meantime have become entitled to promotion. The act of May 22, 1917, also provides "that no person who shall receive a temporary appointment shall be entitled to pay or allowances except under such temporary appointment." His pay, therefore, will be that of his temporary rank (File 26806-155, J. A. G., Apr. 24, 1918).

REIMBURSEMENT OF OFFICERS' MESSES: FOR LOSS, DESTRUCTION, OR DAMAGE TO MESS PROPERTY.

The act of October 6, 1917, authorizes the Paymaster General of the Navy to reimburse "such officers, enlisted men, and others in the naval service of the United States as may have suffered, or may hereafter suffer, loss or destruction of or damage to their personal property and effects in the naval service due to the operations of war or by shipwreck or other marine disaster when such loss, destruction, or damage was without fault or negligence on the part of the claimant * And the liability of the Government under this act shall be limited to such articles of personal property as the Chief of the Bureau of Navigation of the Navy Department, with reference to the personnel of the Navy, or the major general commandant of the Marine Corps, with reference to the personnel of that corps, in his discretion, shall decide to be reasonable, useful, and proper for such officer, enlisted man, or other person while engaged in the public service in line of duty, and the certificate of said chief of bureau or major general commandant, as the case may be, shall be sufficient vouchers for and shall be final as to all matters [P. 27] necessary to the establishment and payment or settlement of any claim filed hereunder *: Provided,

494611-42-Vol. 1 -13

[C. M. O. 37-1918]

That the liability of the Government under this act shall be limited to such articles of personal property as are required by the United States Naval Regulations and in force at the time of loss or destruction or such officers And provided further, That reimbursement or loss, destruction or damage sustained and determined as herein provided shall be made in kind for such articles as are customarily issued to the service and shall be made in money for other articles at the valuation thereof at the time of their loss, destruction, or damage."

In the opinion of the Acting Judge Advocate General, the stores belonging to an officers' mess are the personal property of the officers composing the mess, and they are "such articles of personal property as are required by the United States Naval Regulations" (R-4517 and I-821-828, 4545, U. S. Navy Regs., 1913). And therefore reimbursement may be made to an officers' mess for the loss, destruction, or damage of such stores under the circumstances prescribed by the act of October 6, 1917, on the certificate of the Chief of the Bureau of Navigation that the stores for which reimbursement is claimed are "reasonable, useful, and proper" for such officers' mess (File 26283-1416:2, J. A. G., Apr. 25, 1918).

RETIRED ENLISTED MEN: PROMOTION AND PAY OF.

So far as this office is aware there is no statutory prohibition against the advancement of a retired enlisted man, employed in "active service" pursuant to authority contained in the act of August 29, 1916, to a higher rating, such higher rating to continue during the active-service status of the enlisted man. There is also no provision in the Navy Regulations which would preclude the advancement in question.

The act of August 29, 1916, provides:

"The Secretary of the Navy is authorized in time of war or when a national emergency exists to call any enlisted man on the retired list into active service for such duty as he may be able to perform. While so employed such enlisted men shall receive the same pay and allowances they were receiving when placed on the retired list."

It will be noted from the above that said retired enlisted men "shall receive the same pay and allowances they were receiving when placed on the retired list.” This does not mean that they should receive the identical pay that they were receiving when placed on the retired list (Comp. Dec., 7/28/18; File 7657-450: 2), for to so construe the act of August 29, 1916, would be to hold that their pay was not subject to be increased by future legislation. In the Comptroller's decision cited it was held that "a chief petty officer on the retired list who has been recalled into the active service under the act of August 29, 1916, is entitled to the present pay of men on the active list in the same rating and of the same length of service."

[P. 28] In another decision of the Comptroller of June 26, 1917 (File 26254-2293:1), it was held that "retired enlisted men of the Marine Corps called into active service under authority of the act of August 29, 1916, are not entitled to pay of a higher rating or grade than that held by them at the time of their retirement."

In view of the above the Judge Advocate General was of the opinion that legislation would be necessary to enable retired enlisted men, who have been advanced in rating, to receive the pay of the rating to which advanced (File 7657-585, J. A. G., Apr. 2, 1918).

RETIRED OFFICERS: PROMOTION OF, UNDER SECTION 1481, REVISED STATUTES. A staff officer, having been retired at the age of 62 years, after approximately 35 years of service, with the rank of captain, made a request that he be given the rank of commodore, under section 1481 of the Revised Statutes, which provides:

"Officers of the Medical, Pay, and Engineer Corps, chaplains, professors of mathematics, and constructors, who shall have served faithfully for forty-five years, shall, when retired, have the relative rank of commodore; and officers of these several corps who have been or shall be retired

[C. M. O. 38-1918]

at the age of sixty-two years, before having served for forty-five years, but who shall have served faithfully until retired, shall, on the completion of forty years from their entry into service, have the relative rank of commodore."

(Forty years have elapsed since applicant's entry into the service.)

Held: The act of August 5, 1882, providing that "hereafter there shall be no promotion or increase of pay in the retired list of the Navy, but the rank and pay of officers on the retired list shall be the same that they are when such officer shall be retired," clearly repeals so much of the provisions of section 1481 of the Revised Statutes as authorized the promotion of staff officers to the grade of commodore on the retired list after having completed 40 years from their entry into the service, where such officers have not actually served 40 years before retirement (File 27231-112, J. A. G., Apr. 1, 1918).

C. M. O. 38-1918

[P. 1] Lieutenant Commander Herbert B. Riebe, U. S. Navy, was tried by general court martial on April 8, 1918, at Base Seven, by order of the Commander, Patrol Force, U. S. Atlantic Fleet, and found guilty of the following charge:

Charge.-Drunkenness (one specification).

SENTENCE

"The court therefore sentences him, Lieutenant Commander Herbert B. Riebe, United States Navy, to lose fifteen (15) numbers in his grade."

RECOMMENDATION TO CLEMENCY

The following unanimous recommendation to clemency was spread upon the record:

"In consideration of his excellent record in the performance of invaluable services during a period of national emergency, we recommend Lieutenant Commander Herbert B. Riebe, U. S. Navy, to the clemency of the reviewing authority."

ACTION OF THE CONVENING AUTHORITY

The convening authority on April 16, 1918, placed the following endorsement on the record in the foregoing case:

"The accused in this case has been charged with a grave offense and has plead guilty. The sentence of the court, even under circumstances most favorable to the accused, had they existed, is a most lenient one, and the convening authority cannot but feel that, in arriving at its sentence, the court, misinterpreting its functions, took into consideration those very circumstances which formed the basis of the recommendation to clemency made unanimously by its members.

"While the country is in a state of war it is incumbent upon every officer to so conduct himself as to be at all times prepared to perform his duty to the utmost extent. By overindulgence he renders himself not alone unfit to perform his individual duty but so weakens and destroys his intellectual powers as to make it [P. 2] extremely inadvisable, if continued in, to entrust him with those duties involving the necessity for well-balanced judgment and instant decision as well as responsibility for the lives of others.

"The proceedings, findings, and sentence of the general court martial in the foregoing case of Lieutenant Commander Herbert B. Riebe, U. S. Navy, are approved, and he will accordingly be released from arrest and restored to duty."