# John Wright Register v. United States

> United States Court of Claims · July 15, 1960 · 281 F.2d 448

URL: https://www.frixlaw.com/law-library/cases/9447489

## Case

- **Full name:** John Wright REGISTER v. UNITED STATES
- **Court:** United States Court of Claims
- **Decided:** July 15, 1960
- **Citations:** 281 F.2d 448; 150 Ct. Cl. 752; 1960 U.S. Ct. Cl. LEXIS 135
- **Precedential status:** Published
- **Opinion:** Dissent by Madden
- **Judges:** Madden, Whitaker
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

MADDEN, Judge
(dissenting).
I respectfully disagree with the court’s opinion and decision. ,
The court says that the plaintiff failed of promotion because his commanding officer thought he was not professionally qualified for promotion.
Under ALNAV 149-45, issued in July 1945, the plaintiff was advised that he had been selected for promotion. He did not receive that promotion because his then commanding officer decided that he did not meet either the physical or the professional requirements for promotion. At that time the plaintiff was suffering from the disability for which he was later discharged from the Navy. In December 1945 he was transferred to the Naval Hospital, Bethesda, Maryland.
On January 16, 1946 ALNAV 28-46 was issued. It, like ALNAV 149-45, included the plaintiff’s name. But it differed essentially from the previous ALNAV because it contained the following language:
“The President on 15 January 1946, appoints for temporary service to the next higher Rank or Grade all Commissioned and Warrant Officers of the Active List of the Regular Navy and Naval Reserve including the Women’s Reserve on Active Duty including Terminal Leave whose temporary promotions previously authorized and not subsequently effected have been withheld by reason of physical disability or disqualification, under Hospital Treatment, on Sick Leave or Sick List, or awaiting action of a Naval Retiring Board.
“Par 3 (D) and physical requirements for promotion set forth in *452 BUPERS CIRLET 222-43 are hereby cancelled. Physical Examination required solely for Record purposes.” [Italics supplied.]
Under this executive order the plaintiff was clearly entitled to promotion, notwithstanding his physical disability. That left only the problem of his professional qualifications. His new commanding officer forwarded the plaintiff’s February 7, 1946, acceptance of the promotion with the following endorsement:
“This officer is considered to be mentally, morally and professionally qualified for this appointment.”
On April 25, 1946, the Navy Bureau of Personnel wrote the plaintiff acknowledging receipt of notice of the plaintiff’s promotion, but saying the promotion was under the terms of ALNAV 149-45. The letter then said:
“2. As indicated in ref (b) [Letter of 8-25-45] your promotion to the rank of lieutenant was withheld by the Commanding Officer of the USS Bosque (APA-135) because of your failure to qualify physically or professionally. Therefore, your acknowledgment * * * is null and void and of no force or effect and is hereby cancelled.
“3. At such time as your Commanding Officer forwards a letter of recommendation stating that you are in all respects qualified for promotion, further consideration will be given by this Bureau to your promotion status.”
The Bureau of Personnel was all mixed up. ALNAV 149-45 had nothing to do with the plaintiff’s January 1946 promotion, except that the 1946 order rescinded the 1945 one with regard to physical qualification. So far as professional qualification was concerned, the plaintiff’s 1946 commanding officer had expressly certified the plaintiff’s professional qualifications. It was no part of the function of the Bureau of Personnel to decide that the fact that the plaintiff’s 1945 commanding officer had refused to so certify was an impediment to the plaintiff’s 1946 promotion.
I would decide that the plaintiff was, on the merits, entitled to promotion, and grant him the retired pay of a lieutenant, less the retired pay, already received by him, of a lieutenant (j.g.), from the date of our judgment in the prior suit.
LARAMORE, Judge, joins in the foregoing dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9447489. Public record. Not legal advice.