that they have been unable to locate a decision of the courts holding that the consideration given by an appellate court to the granting or refusal of a petition for certiorari to require a judgment to be certified "for review and determination" constituted the review such as would justify the entering of final judgment thereon. Also, as heretofore stated, there has been no entry of a judgment pursuant to the order dismissing the writ of certiorari, and the judgment presented here for settlement was the one entered by the Court of Claims before these proceedings were had in the case.

Upon further consideration of the matter, the action heretofore taken in disallowing the claim must be and is sustained.

(A-21193)

PAY-REDUCTION-NAVAL ENLISTED MAN

The authority of a commanding officer of a naval vessel to disrate an enlisted man under his command for lack of qualifications to perform the duties of his rating is inherent.

The reduction, by the commanding officer of a naval vessel, of an enlisted man under his command from the rating of cabin cook to mess attendant, first class (a reduction of more than one rating), not being contrary to law or regulation, is legal.

Comptroller General McCarl to Samuel U. Bailey, cook, United States Navy, March 13, 1928:

There has been received your request for review of settlement No. 0186799, dated October 20, 1927, disallowing your claim for difference between pay of the rating of mess attendant, first class, and pay of the rating of wardroom cook from October 19, 1920, to July 22, 1923.

The records show that you reenlisted in the rating of cabin cook at the receiving ship, New York, on July 23, 1919; that you were transferred to the U. S. S. Des Moines in June, 1920, and were serving on that vessel October 19, 1920, when the commanding officer thereof disrated you to mess attendant, first class, for "incompetency "; and, that you performed the duties and served in the rating of mess attendant, first class, until you were discharged, July 22, 1923. It appears, also, that you again reenlisted on July 23, 1923, and on July 28, 1927, in the rating of officer's cook, third class, and you were serving in that rating on October 20, 1927, the date of the settlement which you have requested be reviewed.

Your claim for difference in pay is based on a letter addressed to you July 27, 1927, from the Chief of the Bureau of Navigation, as follows:

1. From an inspection of your record it appears that your disrating on 19 October, 1920, by your commanding officer for incompetency, from cabin cook to mess attendant, first class, was illegal in that your commanding

officer reduced you more than one rating. The bureau is of the opinion, however, that your commanding officer believed you incompetent and intended to disrate you to the next lower rating, which is wardroom cook. It is therefore the opinion of the bureau that your rating should have been wardroom cook from 19 October, 1920, the time of your disratal, until the end of that current enlistment, 22 July, 1923, and your service records in the Bureau of Navigation have been changed accordingly.

It has been recognized from an early date that the authority of a commanding officer of a Navy vessel to disrate an enlisted person under his command for lack of qualifications to perform the duties of his rating is inherent. 10 Op. Atty. Gen. (1862) 168. This inherent authority is unrestricted by law, and the manner of your disrating by your commanding officer on October 19, 1920, apparently conformed to then existing regulations. Under the circumstances of your case and the regulations then in effect the commanding officer was as much authorized to reduce you for incompetency from the rating of cabin cook in the messman branch of the Navy to mess attendant, first class, in the same branch, as he was authorized to reduce you to the rating of wardroom cook in that branch.

You did not serve in the rating of wardroom cook but did serve and performed duty in the rating of mess attendant, first class, to which you were reduced on October 19, 1920; the action in the Bureau of Navigation, nearly seven years later, purporting to correct the records of the bureau to show the reduction from cabin cook to wardroom cook instead of to mess attendant, first class, is without effect to entitle you retroactively to the pay of the higher rating of wardroom cook during the period covered by your claim. The action taken, moreover, apparently was inadvertent, for in response to an informal inquiry from this office respecting the legal basis for the conclusion that your disrating was illegal there has been received from the Bureau of Navigation a communication dated February 11, 1928, as follows:

The office of the Judge Advocate General has declared the disrating of Samuel Ulysess Bailey, officers' cook, second class, U. S. Navy, on 19 October, 1920, for incompetency by his commanding officer, to be legal in all respects.

The bureau therefore has cancelled its letter of 27 July, 1927, on this subject and requests that you so endorse the face of this letter if you have a copy in your possession.

The settlement disallowing your claim, therefore, must be adhered to.

(A-21290)

COMPENSATION-REDUCTION-PREFERENCE RIGHT TO

EX-SOLDIERS AND EX-SAILORS

Section 4 of the act of August 23, 1912, 37 Stat. 413, as amended by the act of February 28, 1916, 39 Stat. 15, granting to honorably discharged soldiers and sailors preference rights in the event of reduction in the force of employees under an executive department, is expressly limited in its scope to the District of Columbia, and may not form the basis for a claim by

an ex-soldier employed in the field service under an executive department for the amount of compensation lost because of a reduction in his salary rate necessitated by reason of reduced appropriations due to curtailment of the work of the department.

Decision by Comptroller General McCarl, March 13, 1928:

S. E. Karigan has requested review of settlement 0151377 (1), dated November 29, 1927, disallowing his claim for $426.30, representing the difference between the salary rate of $2,000 per annum, received by him as an employee in the Quartermaster Corps, United States Army, San Francisco, Calif., prior to January 1, 1923, and the salary rate of $1,600 per annum to which he was reduced January 1, 1923, for the period from January 1 to November 15, 1923, and the difference between $2,000 and $1,720 per annum from November 16, 1923, to April 1, 1924, when his salary rate of $2,000 per annum was restored.

Claimant appears to base his claim on the report of a decision by the War Department published in the Army and Navy Register of August 27, 1927, to the effect that the War Department was without authority under section 4 of the act of August 23, 1912, 37 Stat. 413, to reduce an employee who was an honorably discharged exsoldier in the event of necessary reductions made in the force of employees, if other employees, with no higher efficiency rating, who were not honorably discharged soldiers, were retained in the same salary rate at the time the action was taken reducing the ex-soldier. The action of the War Department was evidently the announcement of an administrative rule for the guidance of that department, and could not form the basis of a claim for compensation in addition to that actually received by the employee at the reduced rates. The ruling has to do with administrative discretion in making reductions and is not controlling in the disposition of the present claim.

This claim has been administratively disapproved by the War Department, as follows:

The demotion of claimant effective January 1, 1923, was necessitated by curtailment of activities due to cessation of war-time operations. He was selected for demotion in accordance with existing laws, rules, and regulations in effect at the time of demotion. He was advised prior to the action of the necessity for same and accepted the demotion.

It does not appear that the demotion of claimant was in any manner illegally effected, and it is recommended that the claim made herewith be disallowed. Section 4 of the act of August 23, 1912, 37 Stat. 413, provides as follows:

The Civil Service Commission shall, subject to the approval of the President, establish a system of efficiency ratings for the classified service in the several executive departments in the District of Columbia based upon records kept in each department and independent establishment with such frequency as to

make them as nearly as possible records of fact. Such system shall provide a minimum rating of efficiency which must be attained by an employee before he may be promoted; it shall also provide a rating below which no employee may fall without being demoted; it shall further provide for a rating below which no employee may fall without being dismissed for inefficiency. All promotions, demotions, or dismissals shall be governed by provisions of the civil-service rules. Copies of all records of efficiency shall be furnished by the departments and independent establishments to the Civil Service Commission for record in accordance with the provisions of this section: Provided, That in the event of reductions being made in the force in any of the executive departments no honorably discharged soldier or sailor whose record in said department is rated good shall be discharged or dropped, or reduced in rank or salary.

Any person knowingly violating the provisions of this section shall be summarily removed from office, and may also upon conviction thereof be punished by a fine of not more than one thousand dollars or by imprisonment for not more than one year.

The act of February 28, 1916, 39 Stat. 15, creating the Bureau of Efficiency, provided as follows:

And provided further, That the duties relating to efficiency ratings imposed upon the Civil Service Commission by section four of the legislative, executive, and judicial appropriation act approved August twenty-third, nineteen hundred and twelve, * are transferred to the Bureau of Efficiency.

See also section 9 of the classification act of 1923, dated March 4, 1923, 42 Stat. 1490.

Prior to the act of August 23, 1912, supra, the Attorney General had announced the rule that ex-soldiers or sailors were not entitled, under the then existing law and Executive orders (see particularly act of August 15, 1876, 19 Stat. 169), to preference over other persons when reductions in salary and rank were to be made even though their qualifications were equal. 27 Op. Atty. Gen. 490.

The act of August 23, 1912, supra, as amended, is expressly limited in its scope to the District of Columbia. And this office has been advised that there has been no action by the Civil Service Commission, the Bureau of Efficiency, or the Personnel Classification Board to extend the requirements for efficiency ratings to the field service. Any such ratings in the field have been adopted and applied by the several administrative offices for their guidance and do not constitute efficiency ratings within the meaning of the 1912 statute. Said statute may not be given any broader application than is therein expressly provided-viz, to the District of Columbia. With respect to the field service, the rule announced under other laws previously in force would remain for application.

Accordingly, aside from any other question that might be involved (see 3 Comp. Gen. 333 and cases therein cited), it must be held that there is no legal basis for an allowance on the present claim. Accordingly, the disallowance must be and is sustained.

(A-21880)

OFFICERS' RESERVE CORPS-CONTINUATION OF PAY AND ALLOWANCES WHILE UNDERGOING TREATMENT FOR INJURIES SUSTAINED ON ACTIVE DUTY

Under section 4 of the act of June 3, 1924, 43 Stat. 364, and regulations issued pursuant thereto, providing for medical and hospital treatment at Government expense of members of the Officers' Reserve Corps injured while on active duty and the continuation of their pay and allowances until they are fit for transportation to their homes, the right to continuation of pay and allowances terminates when the proper medical officer has determined that the patient is fit for travel to his home, notwithstanding he may have been furnished further medical and hospital treatment in order to effect a more perfect cure of the injury.

Comptroller General McCarl to Maj. W. D. Dabney, United States Army, March 13, 1928:

There has been received your letter of February 17, 1928, and attached pay-roll voucher in favor of Raymond D. Woods, first lieutenant, Field Artillery Reserves, for pay and allowances for the period December 18 to 31, 1927, while undergoing treatment in station hospital, Fort Sam Houston, Tex., under the act of March 4, 1923, 42 Stat. 1508, as amended by the act of June 3, 1924, 43 Stat. 364.

Section 4 of the act of June 3, 1924, 43 Stat. 364, in so far as here material, provides:

That * members of the Officers' Reserve Corps and of the enlisted reserve corps of the Army injured in line of duty while on active duty under proper orders; persons hereinbefore described who may now be undergoing hospital treatment for injuries so sustained shall be entitled, under such regulations as the President may prescribe, to medical and hospital treatment at Government expense, and to a continuation of the pay and allowances, whether in money or in kind, they were receiving at the time of such injuries, until they are fit for transportation to their homes, and upon termination of such medical and hospital treatment shall be entitled to transportation to their homes at Government expense. * * *

Special Orders No. 204, August 30, 1927, ordered First Lieut. Raymond D. Woods, Field Artillery Reserves, of Indianapolis, Ind., "to active duty for the purpose of pursuing a course of instruction at the Field Artillery School," Fort Sill, Okla., from September 15 to December 15, 1927. Upon completion of the course and release from duty, his orders directed him to proceed to his home, "and upon arrival thereat will revert to inactive status." While attending the school under said orders on October 9, 1927, claimant sustained a dislocation of his right elbow as the result of an accident while riding horseback. Because of this injury he was a patient in the hospital until October 12, 1927, and thereafter remained "a patient in quarters" at Fort Sill, Okla., until December 19, 1927. On December 20, 1927, he was transferred to the station hospital, Fort Sam Houston, Tex., for further treatment. The surgeon who was