FOR THE RELIEF OF CAPT. WALTER R. GHERARDI, UNITED STATES NAVY (H. R. 17001)

NAVY DEPARTMENT, Washington, February 11, 1929.

The CHAIRMAN COMMITTEE ON NAVAL AFFAIRS,

House of Representatives, Washington, D. C.

MY DEAR MR. CHAIRMAN: Replying to the committee's letter dated February 9, 1929, transmitting the bill (H. R. 17001) for the relief of Capt. Walter R. Gherardi, United States Navy, and requesting the views and recommendation of the Navy Department thereon, I have the honor to advise you as follows:

The purpose of this bill is to provide that the line section board of the Navy, as provided by United States Code, title 34, section 292, in its consideration of the officers eligible for consideration for selection for promotion to the grade of rear adnriral may base its recommendation in the case of Capt. Walter R. Gherardi upon his comparative fitness for the shore duties of the grade of rear admiral, and that in the event of his selection and subsequent promotion he shall be carried as an additional number in grade.

The records of the Navy Department show that Capt. Walter R. Gherardi was born on August 9, 1875. He was appointed to the Naval Academy in 1891; graduated therefrom in 1895 and has since that date remained continuously on the active list of the Navy. He was promoted to successive grades in the normal course and was duly selected with his contemporaries on the Navy list for the grade of commander and captain.

In 1924 while on active duty as aide to the Secretary of the Navy and accompanying that officer on an inspection trip he received an injury to the head in a minor automobile accident which resulted in the formation of a tumor on the brain and necessitated a major operation for its removal. As a result of this operation Captain Gherardi retains a certain minor optical defect. The medical examining board has certified that he is not physically qualified for duties at sea but is so qualified for duties on shore and has further certified "that the operation on the candidate's skull was necessitated by the result of a wound received while traveling with the Secretary of the Navy on official duty and while in the performance of his duties, and that such wound was incurred 'in the line of duty."

Captain Gherardi has been passed over by two selection boards for selection for promotion to the grade of rear admiral. In view of his heretofore excellent service record it appears possible that the action of the selection board in not selecting him for such promotion may well have been due to his physical condition. Under the provisions of United States Code, title 34, section 298, the report of the selection board must certify that "the officers therein recommended are the best fitted of all those under consideration to assume the duties of the next higher grade, except that the recommendation of the board in the case of officers of the former Engineer Corps who are restricted by (679)

2197-29-No. 122

law to the performance of shore duty only, and in that of officers who may hereafter be assigned to engineering duty only, shall be based upon their comparative fitness for the duties prescribed for them by law." Obviously the selection board may not under this law select an officer who is qualified for shore duties only, unless he is a member of the former Engineer Corps or assigned engineering duties only, when for other officers the duties of the next higher grade include sea duty.

On the other hand, under the provisions of United States Code, title 34, section 272, officers whose physical disqualification extends only to sea duty and is occasioned by wounds received in line of duty are not to be debarred from promotion because of such physical disqualification for sea duty. Accepting the verdict of the medical examining board, that Captain Gherardi's disability arises from a wound received in line of duty, it appears that if selected he may be promoted. Also from the intent of the statute, of long standing (R. S. 1494), it may be inferred that such disqualification should not constitute a complete bar to selection.

The bill simply permits Captain Gherardi to be selected, like the officers of the former Engineer Corps, upon the basis of his comparative fitness for duties on shore, and thereby permits the selection board, if it sees fit, to select him for promotion on that basis. It also makes him an extra number in the grade of rear admiral, if so selected and promoted, as is done also by the original statute of August 29, 1916, for officers of the former Engineer Corps. The bill does not direct Captain Gherardi's selection nor does it authorize his promotion without selection but removes the present bar to selection. This removal is believed justifiable both by the intent of R. S. 1494, United States Code, title 34, section 272, and also by the excellent naval service rendered by Captain Gherardi.

The cost of the bill H. R. 17001, if enacted, and if Captain Gherardi is selected and promoted, will be $300 per annum.

The bill H. R. 17001 was referred to the Director of the Bureau of the Budget with the above information and a statement that the Navy Department contemplated recommending that the bill be enacted. The Navy Department has been informed this date that this proposed report 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. 17001 be enacted.

Sincerely yours,

T. DOUGLAS ROBINSON,
Acting Secretary of the Navy.

A BILL For the relief of Captain Walter R. Gherardi, United States Navy

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the line selection board of the Navy, as provided by United States Code, title 34, section 292, in its consideration of the officers eligible for consideration for selection for promotion to the grade of rear admiral may base its recommendation in the case of Captain Walter R. Gherardi upon his comparative fitness for the shore duties of the grade of rear admiral: Provided, That in the event of his selection and subsequent promotion he shall be carried as an additional number in grade.

о

AUTHORIZING THE PROMOTION ON THE RETIRED LIST OF THE NAVY OF STUART L. JOHNSON, ENSIGN (H. R. 15510)

NAVY DEPARTMENT, Washington, February 11, 1929.

The CHAIRMAN COMMITTEE ON NAVAL AFFAIRS,

House of Representatives.

MY DEAR MR. CHAIRMAN: Replying further to the committee's letter dated December 19, 1928, transmitting the bill (H. R. 15510) authorizing the promotion on the retired list of the Navy of Stuart L. Johnson, ensign, 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 promote Stuart L. Johnson, now an ensign, United States Navy, retired, to the rank of lieutenant, United States Navy, retired, as of August 1, 1922, and to provide that his pay while on the retired list shall be computed as if he had been retired in the rank of lieutenant (junior grade) on August 1, 1922, but no back pay or allowances are to accrue prior to the passage of this measure.

The records of the Navy Department show that the above-named officer was born on December 16, 1893. After a period of nearly six years enlisted service he was on September 24, 1917, given a temporary appointment as gunner (ordnance). On January 31, 1918, he attained the temporary rank of ensign, and the temporary rank of lieutenant (junior grade) from July 1, 1918. He accepted appointment and executed oath of office as ensign, regular Navy, on November 30, 1921. He became eligible for promotion to lieutenant (junior grade) on June 5, 1922, but because of physical disability which originated in line of duty was not ordered to examination for promotion. He was, however, ordered to appear before a naval retiring board on May 16, 1923. The board found him to be incapacitated for active service by reason of physical disability incurred in line of duty. The report of the board was approved on September 5, 1923, on which date Mr. Johnson was transferred to the retired list in his present grade.

The law provides (U. S. Code, title 34, sec. 390) that

If any officer * * * shall fail in his physical examination for promotion and be found incapacitated for service by reason of physical disability contracted in the line of duty, he shall be retired with the rank to which his seniority entitled him to be promoted.

This requires (1) failure on physical examination (2) finding of incapacity (3) overdue for promotion. Ensign Johnson was found incapacitated by a naval retiring board and was overdue for promotion. He never, however, definitely failed on his physical examination for promotion as no such examination was held.

It is obvious that had he appeared for a physical examination he would have failed and his retirement would have been effective in the higher grade. In view, therefore, of his heretofore losing his promotion only by this technicality, the Navy Department recommends that this bill be enacted if amended so as to authorize advancement only to the grade of lieutenant (junior grade) on the retired list.

The bill, however, carries his advancement to the grade of lieutenant on the retired list. Although his contemporaries on the active list were due for and had achieved promotion through the grade of lieutenant (junior grade) to that of lieutenant by the time of his actual retirement, his physical disability occurred prior to his examination for the first promotion and he was, because of such disability, never advanced to the lower grade and hence did not become eligible for further advancement to the grade of lieutenant. The enactment of the bill in its present form would therefore serve to advance him two grades on the retired list, to only one of which two steps can he be considered entitled.

The bill H. R. 15510 carries the date of August 1, 1922, as that on which the computation of his rate of retired pay in the future should be based. The Navy Department sees no reason for the selection of this date and considers it preferable that the general rule adopted by the Navy Department should apply, i. e., that these advancements on the retired list when accomplished by legislative means should date either from the passage of the act, if so stated, or from the original date of retirement which in this case was September 5, 1923. This advancement on the retired list is considered as deserved by this officer and was prevented heretofore only by a technicality of law. However, it should take place as of the actual date of retirement, September 5, 1923, and the Navy Department recommends that the bill be changed accordingly. This change of date will cause no difference in the rate of pay.

This case is in general parallel to those of Ensigns Jacob E. DeGarmo and Lloyd Lafot, United States Navy, retired, private bills for whom were approved by the Navy Department and were enacted by the first session of the present Congress.

The bill H. R. 15510 will, if enacted as at present written or amended as recommended above, result in an additional cost to the Government of $345 per annum, from the date of its enactment.

The bill H. R. 15510 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 if amended as suggested. Under date of February 1, 1929, the Director of the Bureau of the Budget advised the Navy Department that the 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. 15510 be amended by the substitution in line 5 of the words "lieutenant (junior grade)" for the word "lieutenant" and by the substitution in lines 4 and 8 of the words "September 5, 1923,' for the words "August 1, 1922," and that it be enacted as so amended. Sincerely yours,

CURTIS D. WILBUR,
Secretary of the Navy.

A BILL Authorizing the promotion on the retired list of the Navy of Stuart L. Johnson, ensign 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 be, and he is hereby, authorized and directed to promote as of August 1, 1922, to the rank of lieutenant (retired), Stuart L. Johnson, now ensign (retired). That hereafter the pay of this officer while on the retired list shall be computed as if he had been retired in the rank of lieutenant, junior grade, August 1, 1922: Provided, That no back pay or allowances shall accrue prior to the passage of this act.