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Rear-Admiral P. H. Cooper, Rear-Admiral Cooper was for a part of the time one of the nine higher numbers of the grade of rear-admirals, and was, under section 1466 of the Revised Statutes, to rank with a major-general in the Army.
"In the case of The United States v. Crosley, decided by the court January 23, 1905, Mr. Justice Day, speaking for the court, said:
"They are selected for like service, and it is admitted that there would have been reason for a like express statutory provision in their favor as to compensation. The sum of $200 is allowed to an aid to a major-general in addition to the regular pay of his rank. It is allowed as payment for the additional service imposed. Bearing in mind the purpose of the act to give the same compensation to corresponding officers of the Army and Navy, and that it is expressly provided that officers of the Navy shall receive the same pay and allowances, except for forage, as are or may be provided by law for offcers of the Army of corresponding rank, we think it does no violence to, but rather carries out, the purpose of Congress to construe this section so as to give to an aid of a rear-admiral, in addition to the regular pay of his rank, pay similar to that allowed an aid to a major-general. We reach the conclusion that the Court of Claims was right in its allowance of this item.'
"For the period Lieutenant Boughter was serving as aid to Rear-Admiral Wildes, who was one of the nine lower numbers of the grade of rear-admiral, he is entitled to one hundred and fifty dollars a year, in addition to the pay of his rank. This is the rate of pay allowed an aid to a brigadier-general of the Army.
"2nd. While serving as aid to Rear-Admiral Cooper, after he became a rear-admiral of the nine higher numbers of the grade of rear-admiral, Lieutenant Boughter is entitled to two hundred dollars a year in addition to pay of his rank.
"Under the decision of the Supreme Court in the Crosley case aids to rear-admirals are not entitled to mounted pay.
"The decision of the court in the Crosley case, supra, reverses the decision of the Comptroller of August 26, 1899 (6 Comp. Dec., 154), so far as the allowance of the additional pay to aids under section 1261 of the Revised Statutes, and holds that while serving as aids they are entitled to the additional pay. But the court affirms so much of the Comptroller's decision as decides that while so serving they are not entitled to mounted pay."
In the case to which the Auditor refers, United States v. Crosley, No. 96, October term, 1904, the Supreme Court decided, January 23, 1905, that the defendant who was an aid to a rear-admiral of the Navy of the higher numbers was enti
tled to additional pay at the rate of $200 per annum, provided by section 1261, Revised Statutes, for an aid to a majorgeneral of the Army. This decision, which is contrary to a decision of this office (6 Comp. Dec., 154), will hereafter be followed by the accounting officers in settling accounts in similar cases.
The particular question presented in the decision of the Auditor was not determined in the Crosley case, i. e., whether an aid to a rear-admiral of the nine lower numbers is entitled to be paid the additional pay at the rate of $200 provided for an aid to a major-general of the Army, or only at the rate of $150 per annum provided for an aid to a brigadier-general of the Army.
The Auditor decides that Lieutenant Boughter, who was aid to a rear-admiral of the lower numbers, is entitled to the pay of an aid to a brigadier-general of the Army at the rate of $150 per annum.
The rate of additional pay to which Lieutenant Boughter is entitled depends upon the rank of a rear-admiral of the nine lower numbers, the officer with whom he served, as the officer's rank governs the relative rank to officers in the Army as fixed by section 1466 of the Revised Statutes, by which it is provided:
"The relative rank between officers of the Navy, whether on the active or retired list, and officers of the Army, shall be as follows, lineal rank only being considered. "Rear-admirals with major-generals. "Commodores with brigadier-generals. "Captains with colonels.
Section 7 of the navy personnel act (30 Stat., 1005) provides: "That the active list of the line of the Navy, as constituted by section one of this act, shall be composed of eighteen rearadmirals, seventy captains Provided, That each rear-admiral in the nine lower numbers of that grade shall receive the same pay and allowances as are now allowed a brigadier-general in the Army."
This law eliminated the rank or grade of commodore from the active list of the Navy.
It will be noticed that the proviso does not specify that a rear-admiral of the nine lower numbers shall have the relative
rank and pay of a brigadier-general, but merely that he shall receive the same pay and allowances.
The law provides for eighteen rear-admirals for the Navy; that is, for eighteen officers each with the rank of rear-admiral, and, except for the purposes of fixing their own pay and allowances, I do not think the proviso limiting the pay and allowances of the rear-admirals of the nine lower numbers to the pay and allowances of brigadier-generals in the Army affects the rank given them. If Congress had intended to assimilate their rank as well as pay and allowances to that of a brigadier-general they might easily have so expressed it. The second proviso of section 7 is as follows:
"When the office of chief of bureau is filled by an officer below the rank of rear-admiral said officer shall, while holding said office, have the rank of rear-admiral and receive the same. pay and allowances as are now allowed a brigadier-general in the Army."
This proviso throws light upon the question under consideration. The old law in force before the passage of the personnel act (sec. 1472, Rev. Stat.) provided that when the office of chief of bureau was filled by a line officer below the rank of commodore he should have the relative rank of commodore while he held that office, and as section 7 abolished the rank or relative rank of commodore it became necessary to provide a substitute for section 1472 of the Revised Statutes, which was done by the proviso above quoted and the rank of rearadmiral, but the pay and allowances of a brigadier-general were provided, just as the rank of rear-admiral, but the pay of a brigadier-general was given by the first proviso to rearadmirals of the nine lower numbers who had formerly the relative rank of commodore.
It was said by the Supreme Court in the case of Rodgers v. United States (185 U. S., 89)
"Section 7 in effect abolishes the rank of commodore, at least so far as respects the active list of the line of the Navy, and lifts those in that rank to that of rear-admiral. Prior to the act of March 3, 1899, the corresponding rank of officers of the Navy and Army were rear-admiral and major-general, commodore and brigadier-general, captain and colonel. By this act the rank of commodore was abolished, although that of brigadier-general was undisturbed. No change was made
in the relative rank of captain and colonel, or of rear-admiral and major-general, but the legislation left one rank in the Army to which there was no corresponding rank in the Navy. The statute in effect lifted the rank in the Navy which was corresponding to that of brigadier-general in the Army to that of rear-admiral and corresponding with that of majorgeneral in the Army."
In the case of Gibson v. United States (194 U. S., 182) the same court said:
"There is no question that, had the claimant been promoted in the active service from captain to rear-admiral, he would have passed into the lower grade of rear-admirals, so far at least as his pay was concerned, and would have received, so long as within that number, the pay of a brigadier-general, notwithstanding that for all other purposes he was entitled to the rank and privileges of a rear-admiral.”
And referring to section 7 of Navy Personnel act said:
"Congress had already created for the purposes of pay a division in the rank or grade of rear-admiral, with higher pay for those of higher number and lower pay for others in the rank."
Article 33, Navy Regulations, 1900, which prescribes the command of rear-admirals, makes no difference in the duties, as between the higher and lower numbers of rear-admirals.
From what has already been said I am of opinion that the rear-admirals of the nine lower numbers, except for purposes of their own pay and allowances, are rear-admirals with the relative rank under section 1466, Revised Statutes, of majorgenerals in the Army, and that their aids are entitled under section 1261, Revised Statutes, to $200 a year in addition to the pay of their rank.
The Auditor's decision is modified in accordance with the above views, and claimant will be allowed additional pay at the rate of $200 per annum while serving at sea as aid to Rear-Admiral Wildes, a rear-admiral of the nine lower numbers, and as aid to Rear-Admiral Cooper, as well while that officer was of the nine lower numbers as after he became a rear-admiral of the nine higher numbers.
ERROR OF CALCULATION IN SENTENCE OF A SUMMARY COURT-MARTIAL.
Where an enlisted man in the Marine Corps was sentenced by a summary court-martial "to lose three months pay, amounting to $40.40,” the fact that the sum named, viz, $40.40, was incorrect, and should have been $40.60, will not defeat the clearly expressed intention of the court that he forfeit three months' pay, and he should, therefore, be charged with the correct amount.
(Assistant Comptroller Mitchell to Lieutenant-Colonel Richards, March 21, 1905.)
I have received through the Secretary of the Navy your letter of the 2d instant, making request for a decision in the case of Private Charles E. Powell, U. S. Marine Corps, as follows:
"1. I have the honor to state that the accounts of Charles E. Powell, private, U. S. Marine Corps, who was enlisted at Seattle, Washington, on March 13, 1901, for four (4) years, now serving at the marine barracks, navy-yard, Mare Island, Cal., are before this office for final settlement upon discharge by reason of expiration of enlistment.
"2. Pursuant to the directions of the Secretary of the Navy, contained in a communication (44854-S. C. M.) dated January 7, 1905, addressed to the commanding officer of marines, navyyard, Mare Island, Cal., in part as follows:
"I have the honor to inform you that sentences of summary courts-martial in the cases of the following-named men have been approved by the Department, with loss of pay, as stated below:
Name and rating.
Place of trial.
Charles E. Powell, private..... Marine barracks, Mare Island,
Felix W. Ickes, private....
"Please take the necessary action accordingly and return the enclosed acknowledgments.'
"A checkage of the sum stated, viz, $40.40, has already been entered against this man's account. This office was, about the same time, furnished with memorandum from the Navy Department, dated January 7, 1905, describing the offense and sentence in this case in the following terms:
"Charles E. Powell, private, tried by summary courtmartial at the marine barracks, navy-yard, Mare Island, Cal.,