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recommendation is not in conflict with the financial program of the President.

In view of the foregoing, the Navy Department recommends against the enactment of the bill H. R. 15204.

Sincerely yours,

CURTIS D. WILBUR,
Secretary of the Nary.

A BILL To provide for the refitting of the frigate Constitution

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the Navy is authorized and directed to refit and restore the frigate Constitution, as far as may be practicable, to her original condition. For such purpose there is hereby authorized to be appropriated the sum of $300,000, or so much thereof as may be necessary, to be expended under the direction of the Secretary of the Navy, together with such sums as may have been or may be voluntarily contributed for such purpose.

SEC. 2. There are authorized to be appropriated annually such amounts, to be expended under the direction of the Secretary of the Navy, as may be necessary for the maintenance, preservation, and protection of the frigate Constitution.

FOR THE RELIEF OF LEONARD T. NEWTON (H. R. 15489)

NAVY DEPARTMENT, Washington, January 29, 1929.

The CHAIRMAN COMMITTEE ON NAVAL AFFAIRS,

House of Representatives, Washington, D. C.

MY DEAR Mr. CHAIRMAN: Replying further to the committee's letter of December 19, 1928, transmitting the bill (H. R. 15489) for the relief of Leonard T. Newton, pharmacist's mate, first class, United States Navy, and requesting the views and recommendations of the Navy Department thereon, I have the honor to advise you as follows:

The purpose of this bill is to pay to Leonard T. Newton, pharmacist's mate, first class, United States Navy, the sum of $485, which represents the amount which he had deposited with a pay clerk on board the U. S. S. Henderson when the pay clerk absconded with said funds and deserted from the naval service.

The records of the Navy Department show that on or about November 18, 1921, the acting pay clerk of the U. S. S. Henderson absconded with certain Government funds and with the sum of $485, which latter amount had been deposited for safekeeping by Leonard T. Newton, pharmacist's mate, first class, United States Navy. The acting pay clerk has never been apprehended and the money has not been recovered.

While the United States is not legally liable for the return of money deposited with disbursing officers of the Navy for safekeeping, the Navy Department considers that there is a moral responsibility resting upon the Government. Provision is made in article 1779 of the United States Navy Regulations, with a view to cultivating habits of thrift, for the receipt by disbursing officers of money for safekeeping. This moral responsibility has been recognized by the Congress in the past, and items for reimbursement of such sums lost by the defalcation of supply officers have been incorporated in appropriation and deficiency bills.

The bill H. R. 15489, if enacted into law, will result in an additional cost to the Government of $485.

The bill (H. R. 15489) was referred to the Bureau of the Budget with the above information as to cost and a statement that the Navy Department contemplated making a favorable recommendation thereon. Under date of January 23, 1929, the Director of the Bureau of the Budget advised the Navy Department that this proposed recommendation is not in conflict with the financial program of the President.

In view of the foregoing, the Navy Department recommends that the bill (H. R. 15489) be enacted.

Sincerely yours,

CURTIS D. WILBUR,
Secretary of the Navy.

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A BILL For the relief of Leonard T. Newton, pharmacist mate, first class, United States Navy

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the Treasury is hereby authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, the sum of $485 to Leonard T. Newton, pharmacist mate, first class, United States Navy, which sum was deposited by the said Leonard T. Newton, while he was serving on the United States steamship Henderson, for safekeeping with a pay clerk of said vessel who subsequently absconded with said funds and deserted from the naval service.

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TO AMEND THE ACT OF AUGUST 29, 1916, RELATING TO THE PROMOTION OF OFFICERS IN THE NAVY TO PROVIDE FOR THE PROMOTION OF OFFICERS WHO HAVE BEEN WOUNDED IN LINE OF DUTY (H. R. 15730)

NAVY DEPARTMENT, Washington, January 30, 1929.

The CHAIRMAN COMMITTEE ON NAVAL AFFAIRS,

House of Representatives, Washington, D. C.

MY DEAR MR. CHAIRMAN: Replying further to the committee's letter of January 5, 1929, transmitting the bill (H. R. 15730) to amend the act of August 29, 1916, relating to the promotion of officers in the Navy to provide for the promotion of officers who have been wounded in line of duty, and requesting the views and recommendations of the Navy Department thereon, I have to advise you as follows:

The purpose of the proposed legislation is to amend the act of August 29, 1916 (39 Stat. 579; U. S. Code, title 34, art. 298), so as to permit the selection upon the basis of comparative fitness for shore duty of officers physically disqualified for duties at sea by wounds received in the line of duty but not disqualified for other duties.

The amendment to the existing law proposed in this bill is as shown in lines 10 to 16 on page 2 of the bill, reading as follows:

Provided, That the recommendation of the board in the case of officers physically disqualified for duties at sea by wounds received in the line of duty but not disqualified for other duties of the next higher grade shall be based upon their comparative fitness for the shore duties of the next higher grade. Upon promotion they shall be carried as additional numbers in grade.

The act of April 21, 1864, and of July 28, 1866, as embodied in section 1494, Revised Statutes, acts passed during and shortly after the Civil War, provide that officers disqualified as noted above should not be excluded from the promotion to which they would otherwise be regularly entitled. This section of the Revised Statutes is now incorporated in United States Code, title 34, article 272. This law is still in full effect with relation to promotion to the lower grades of the Navy, but has been largely nullified with respect to the promotion in the grades of commander, captain, and rear admiral, for which selection is required with respect to the line, by the act. of August 29, 1916, and the Staff Corps by the act of July 1, 1918 (40 Stat. 718; U. S. Code, title 34, art. 301). As quoted in the bill,. the first of these acts requires the board to certify that the officers recommended in its report are "the best fitted of all those under consideration to assume the duties of the next higher grade," with certain exceptions as to engineer officers. The second act extends existing laws with reference to promotion by selection in the line to the Staff Corps "under the same conditions in all respects except as may be necessary to adapt the said provisions to such Staff Corps." Obviously it is difficult for the board to recommend officers physically disabled for sea duty "as among the best fitted to assume (557)

2197-29-No. 99

the duties of the next higher grade" when such duties include sea duty, and hence the effect of Revised Statutes 1494 is nullified with respect to promotion to the selection grades.

The act of August 29, 1916, however, makes exception as to the selection of "officers of the former engineer corps who are restricted by law to the performance of shore duty only" and "officers who may hereafter be assigned to engineering duty only." In the case of these officers the recommendation of the board "shall be based upon their comparative fitness for the duties prescribed for them. by law," and further provides that these officers shall upon promotion be carried as additional numbers in grade.

The bill places officers physically disqualified as noted in the same status as officers of the former engineer corps restricted to shore duty only and it is believed that in so doing it is in effect continuing the intent of 1494 Revised Statutes, and is removing the present nullification thereof with regard to the upper grades of the Navy. Similar action by Congress was taken in the act of July 11, 1919 (41 Stat. 147; U. S. Code, title 34, art. 302), permitting the promotion of captains then in the line of the permanent Navy, but this act, designed for the relief of one officer, was so narrowly drawn that it is not generally applicable and no longer is effective.

It is probable that the origin of 1494, Revised Statutes, was to afford relief to officers wounded in the operations of the Civil War. The Attorney General (23 Op. Atty. Gen. 224) has held, however, that the expression "wounds received in the line of his duty" as used in 1494, Revised Statutes, is applicable to wounds received in any duty and is not restricted to wounds received in battle or in some hazardous enterprise.

There are at present three officers in the Navy to whom this act would be applicable. One is an officer designated for engineering duty only, who has already been afforded opportunities for promotion to the grade of captain on the basis of his comparative fitness for shore duty as such. The other two officers are of the line. One, a captain, has been passed over, very possibly because of his physical disqualification; the other, a lieutenant, will not reach the selection. point for some years. The probable immediate effect of this bill therefore would be to authorize the selection of one captain for promotion to the grade of rear admiral.

The Navy Department believes that in justice at present to the captain affected and in the future to other officers who may be similarly situated this bill should be enacted.

The bill H. R. 15730, if enacted into law, will result in an additional cost to the Navy of $300.

The bill H. R. 15730 was referred to the Bureau of the Budget with the above information as to cost and a statement that the Navy Department contemplated making a favorable recommendation thereon. Under date of January 30, 1929, the Director of the Bureau of the Budget advised the Navy Department that this proposed recommendation is not in conflict with the financial program of the President.

In view of the foregoing, the Navy Department recommends that the bill H. R. 15730 be enacted.

Sincerely yours,

CURTIS D. WILBUR,
Secretary of the Nary.

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