
    JOHN T. AIKINS v. THE UNITED STATES
    [No. C-945.
    Decided January 7, 1929]
    
      Mr. George A. King for the plaintiff. Mr. Cornelius H. Bull and King dt King were on the brief.
    
      Mr. Frank J. Keating, with whom was Mr. Assistant Attorney General Uermam, J. Galloway, for the defendant. Mr. J. J. Lenihan was on the brief.
   MEMORANDUM BY THE COURT

Plaintiff was appointed to the provisional rank of 2nd lieutenant in the Marine Corps Reserve on December 16, 1918, without the examination prescribed by the act of August 29, 1916, 39 Stat. 587, which reads as follows:

“ No person shall be appointed or commissioned as an officer in any rank in any class of the Naval Reserve Force, or promoted to a higher rank therein, unless he shall have been examined and recommended for such appointment, commission, or promotion by a board of three naval officers not below the rank of lieutenant commander nor until he shall have been found physically qualified by a board of medical officers to perform the duties required in time of war, * *

Plaintiff is seeking to recover the uniform gratuity of $150 provided for by said act. The case is controlled by the decision of this court in Otis Beeman v. United States, D-129, decided April 16, 1928, 65 C. Cls. 431, and the cases therein cited. Plaintiff is not entitled to recover, and the petition will be dismissed.  