
    JOHN L. MURPHY v. THE UNITED STATES
    [No. D-313.
    Decided May 28, 1928]
    
      On the Proofs
    
    
      Navy pay; commission without compliance with statute; service as de facto officer; suit for pay of commissioned/ officer. — See Beeman v. United States, ante, p. 431.
    
      The Reporteras statement of the case:
    
      Mr. Cornelius H. Bull for the plaintiff. King & King were on the brief.
    
      Messrs. James J. Lemham, and Frank J. Keating, with whom was Mr. Assistant Attorney General Merman J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. On February 13, 1918, the plaintiff was assigned the provisional rank of .ensign, U. S. Naval Reserve Force, and from that date to July 31, 1918, he was on active duty under such provisional appointment.
    Plaintiff was on February 25, 1918, by orders approved by the Navy Department, appointed a naval aviator for duty involving actual flying in aircraft, and such designation remained in force during the entire period covered by this claim, to wit, until July 31, 1918. On March 13, 1918, he was admitted for treatment at the U. S. Naval Hospital at Chelsea, Mass., and discharged therefrom July 30, 1918. He thereafter reported for duty at the naval air station, Pensacola, Fl'a.
    II. Plaintiff did not receive an increase of 50 per centum of pay as an ensign from May 1, 1918, to July 31, 1918; if entitled thereto there would be due him $212.50.
    III. On February 13, 1918, the plaintiff was serving in the enlisted rank of a quartermaster, first class, U. S. Naval Keserve Force, and on that date was assigned the provisional rank of ensign in class 5 of the U. S. Naval Keserve Flying-Corps, which appointment he accepted on February 25, 1918. Plaintiff was not examined for such appointment and commission by a board of three naval officers nor by a board of medical' officers, as required by the act of August 29, 1916 (39 Stat. 587).
    The court decided that plaintiff was not entitled to recover.
   MEMORANDUM

BY THE COURT

This is a suit to recover $212.50 which plaintiff claims is due him for services in the U. S. Naval Keserve Force from May 1, 1918, to July 31, 1918, when he was detailed to duty involving flying, basing his claim on the act of March 3, 1915 (38 Stat. 939).

On February 13, 1918, plaintiff, who was then serving in the enlisted Tank of a quartermaster, first class, U. S. Naval Keserve Force, was given the provisional rank of ensign, class 5, U. S. Naval Keserve Flying Corps, which he accepted on February 25, and served as such until July 31, 1918. He was not examined or recommended for this appointment by a board of three naval officers nor by a board of medical officers, as required by the act of August 29, 1916 (39 Stat. 556, 587, 588).

This case is ruled by the Beeman case, D-129, decided by this court April 16, 1928. See also Kearney v. United States, D-804, this day decided (post, p. 683).

The petition should be dismissed, and it is so ordered.  