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In the opinion of the court, he had had sufficient time to acquire a familiarity with the essential details of construction of submarines, etc., even though he may not have had any special knowledge of these types of vessels at the time they came under his command. The court believes that the rescue operations that were under his immediate, direct command were of such tremendous importance that Rear Admiral Brumby should have had complete and accurate knowledge of all such operations undertaken by his subordinates, the reasons therefor, and the details of their execution.
The court was further of the opinion that the lack of such knowledge on the part of Rear Admiral Brumby as set forth above prevented him from contributing "that superior and intelligent guidance, force, and sound judgment," etc.
Holding the opinion that it did, the court believed it was its duty to report that opinion to the Secretary of the Navy.
The court further believed the usefulness of Admiral Brumby as commander of the control force was so impaired by the lack of knowledge shown by the testimony before it that in the interests of good administration he should be detached from that command, and the court so recommended. It did not recommend disciplinary action in this case.
There follow examples of the testimony given by Rear Admiral Brumby before the court, purporting to indicate that he was not familiar with the details of the work.
The Secretary of the Navy finally closed the case on April 13, 1928, and stated, in part, as follows:
1. From a careful reading of the record in this case it is evident to the Navy Department that the court conducted a most thorough inquiry into the subject matter submitted to it. The court is therefore to be commended for the painstaking care and thoroughness with which it has inquired into the circumstances surrounding the disaster in question and the attempted rescue of the crew of the United States submarine S-4.
4. The court of inquiry finds that Lieut. Commander Roy K. Jones, commanding officer of the S-4, is worthy of blame for the accident because of the failure to determine the presence of the destroyer in time to avoid the collision. The finding is based wholly on circumstantial evidence indicating that Lieut. Commander Jones was in actual command, and pointing to the fact that the periscopes and listening devices were not effectively used in determining the presence of the destroyer. The Chief of the Bureau of Navigation in commenting on the finding concerning Lieut. Commander Jones calls attention to the fact that there are possibilities which might completely exculpate him from all blame. There can be no doubt, however, that under all the facts shown by the evidence and found by the court, the preponderance of probability is in favor of the finding that the failure to discover the presence of the Paulding in time to avoid the collision was the result of the failure to use the extraordinary care required.
5. In determining issues of fact in a civil action, a preponderance of evidence is a sufficient basis for a finding of fact. This is sometimes spoken of as the weight of the evidence and sometimes as the preponderance of probability. In criminal matters a much higher degree of proof is required. If the evidence is direct, it must satisfy the court and jury beyond a reasonable doubt. If it is entirely circumstantial, in order to justify a verdict against the accused, the circumstantial evidence must be of so persuasive a character, and point so unerringly to the guilt of the accused, as to exclude every other reasonable hypothesis than that of guilt. It is manifest that the proof in this case, so far as it affects the conduct of Lieut. Commander Jones, is wholly insufficient to justify a finding of guilt. In other words, by a verdict of a general court-martial, whose verdict of guilty must be based upon circumstantial evidence, excluding every other reasonable hypothesis, it is manifest that Lieut. Commander Jones would be acquitted.
6. The Navy Department has already had occasions to consider the conduct of Lieut. Commander Jones at the inquest held on his remains wherein it was essential to determine whether or not his death was the result of his own misconduct. It was found that his death was not the result of his misconduct and in pursuance of that finding, the death gratuity due to the widow has already been paid to her.
7. * * * In view of the fact that Lieutenant Commander Jones lost his life by this collision, and in view of the fact that the evidence presented to the court of inquiry by reason of the loss of the whole crew of the S-4 would be insufficient to convict him of wrongdoing, in case the evidence was presented to a general court-martial, and in view of the fact that no such trial can be held, it seems unnecessary to expressly approve or disapprove of the finding against Lieutenant Commander Jones other than to point out that such finding is in accordance with the probabilities, but that these probabilities are insufficient to justify disciplinary action, assuming such action was possible. * * *
Brumby, United States
9. The court recommends that Rear Admiral Frank H. Navy, be removed from his command of the control force. was not based upon any failure of the officers under his command to do all that was possible to do in the rescue and salvage operations, nor was it due to the failure to obtain supplies or equipment essential for those operations, but is based upon the theory that Rear Admiral Brumby's testimony showed an insufficient familiarity with the details of the construction of submarines. * *
10. In connection with these questions and answers it is to be observed that most all of them call for hearsay evidence. Rear Admiral Brumby was asked to relate what had occurred upon the bottom of the bay and what difficulties the divers had encountered there. It is obvious that he could have no knowledge of these facts other than hearsay. While it would have been proper for him to have stated what reports had been made to him by the divers, either by telephone from the bottom or after returning to the surface, it is obvious that it would be better for the divers themselves to testify as to the work done on the bottom and the difficulties they encountered there. *
12. Rear Admiral Brumby was appropriately called upon for testimony as to the minute details of the salvage operations which had been going on for more than a month and was asked to give the exact time of certain incidents in the operation and may readily have been mistaken in his testimony. If he had been advised, either by being made a party to the proceedings or in any other way, that in the opinion of the court his testimony was being considered with reference to its effect upon his professional career or professional intelligence, it is obvious that he could and probably would have answered some questions which he felt might be more appropriately answered by those having direct and first-hand information. He was not advised at any time that the court considered his conduct such as to require investigation or action of any kind. If his attention had been called to his mistake with reference to the delay in getting air into the torpedo room, he would have been in a position to correct such mistake. It is probable that the court failed to do this because at that time the facts had not been fully brought to their attention. Rear Admiral Brumby not only had charge of the operations but he remained on board the Falcon in constant contact with all of those engaged in the work and he states that in his conferences the decisions were unanimously arrived at and carried out. There is nothing in his conduct in connection with the rescue or salvage operations which is considered blameworthy or other than commendable, and under all the circumstances, any errors or oversights or failures in his testimony are insufficient to overcome a splendid record of achievement covering more than 31 years of service in the Navy, approved as it has been by his superior officers and also by the selection board whose recommendation resulted in his recent promotion to the rank of rear admiral.
14. Subject to the above, the proceedings, findings, opinion, and recommendations of the court of inquiry and court of inquiry in its first and second revisions and the remarks of the Judge Advocate General, the Chief of the Bureau of Navigation, and the Chief of Naval Operations, are approved.
Senator ODDIE. Captain Theleen, in connection with the purpose and work of the Naval Consulting Board, it was thought that the matter of asking the Naval Consulting Board to concentrate to a certain extent on safety devices for submarines should properly be referred to the Secretary of the Navy. Will you request Secretary Wilbur, for us, to give the committee an opinion on this matter? Captain THELEEN. I will do that, Senator.
Senator ODDIE. And I will ask that you put the Secretary's reply in the record at this point.
Captain THELEEN. Yes, sir.
(The statement of the Secretary of the Navy is as follows:)
The question of examining and considering the large number of ideas and suggestions received in the Navy Department since the S-4 disaster has been given serious consideration. The committee is informed of the history of the efforts of the department and of the President of the United States to obtain congressional action with reference to appointing a suitable technical board to consider the subject of safety devices for submarines and the salvage of submarines.
The Naval Consulting Board is a board appointed through the efforts of the Secretary of the Navy in 1915, and during the World War passed upon over 100,000 ideas, many of which referred to safety devices for submarines. The question of calling for the assistance of the Naval Consulting Board in connection with this technical board was considered, but it was felt that this board might be open to the charge of bias as they had already passed on many safety devices submitted during the war.
In the latter part of December, 1927, the chairman of the Naval Consulting Board telegraphed to the Secretary of the Navy that the Naval Consulting Board offered its services individually or collectively to investigate the S-4 disaster. The Secretary, in acknowledging the receipt of this telegram, stated that the department appreciated very much the willingness of the board to be of service and would be very glad to call upon them should need for the services of the board be felt. Furthermore, the department would be very glad to receive and consider any suggestions of any character which the board might have to make upon this subject. In reply to this letter the chairman of the Naval Consulting Board stated that he had no doubt that this matter was receiving the best attention of the Navy and that he had no suggestions to make. The question of obtaining assistance from the Naval Consulting Board has been seriously considered. There is some doubt, however, as to the legal status of this board. From the years 1916 to 1921 the board was recognized as an existing board by action of Congress in making appropriations for operating expenses. Whether or not the department can, at the present time, call upon this board for gratuitous services is doubtful.
The law forbidding the acceptance of voluntary services reads:
"No executive department of other Government establishment of the United States shall expend, in any one fiscal year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the Government in any contract or other obligation for the future payment of money in excess of such appropriations unless such contract or obligation is authorized by law. Nor shall any department or any officer of the Government accept voluntary service for the Government or employ personal service in excess of that authorized by law, except in cases of sudden emergency involving the loss of human life or the destruction of property. * * * Any person violating any provision of this section shall be summarily removed from office and may also be punished by a fine of not less than $100 or by imprisonment for not less than one month. (U. S. Code, title 31, sec. 665; R. S. sec. 3679; Mar. 3, 1905, c. 1484, sec. 4, 33 Stat. 1257; Feb. 27, 1906, c..510, sec. 3, 34 Stat. 48.)
The payment of compensation or expenses of boards and commissions is restricted by the following statutes:
"No part of the public moneys, or of any appropriation made by Congress, shall be used for the payment of compensation or expenses of any commission, council, board, or other similar body, or any members thereof, or for expenses in connection with any work or the results of any work or action of any commission, council, board, or other similar body, unless the creation of the same shall be or shall have been authorized by law; nor shall there be employed by detail, hereafter or heretofore made, or otherwise personal services from any executive department or other Government establishment in connection with any such commission, council, board, or other similar body." (U. S. Code, title 31, sec. 673; Mar. 4, 1909, c. 299, sec. 9, 35 Stat. 1027.)
'No accounting or disbursing officer of the Government shall allow or pay any account or charge whatever, growing out of, or in any way connected with, any commission or inquiry, except courts-martial or courts of inquiry in the military or naval service of the United States, until special appropriations shall
have been made by law to pay such accounts and charges. This section, however, shall not extend to the contingent fund connected with the foreign intercourse of the Government, placed at the disposal of the President." Code, title 31, sec. 672; R. S. sec. 3681.)
If in the study of the suggestions by the department there are any questions that could be properly considered by the Naval Consulting Board, that board may be asked to advise the department with reference to suggestions. Without clerical and other assistance it would not be just to the board to expect them to make the research necessary of the thousands of suggestions made to the department.
The resolution introduced in the House on the 7th of January was not passed by Congress. However, in the naval appropriation bill for the fiscal year ending June 30, 1929, under the Bureau of Construction and Repair, $200,000 of the total amount appropriated for that bureau was made available immediately. This item would permit of the employment of experts for the study of devices for submarine salvage and rescue and this is indicated in the report of the House Committee on Appropriations, as follows:
"The department constantly is engaged in the study of improved submarine salvage and rescue facilities. The S-4 disaster occasioned a deluge of suggestions from every conceivable quarter, and these are being analyzed. Those which give promise of usefulness will be carefully investigated. To enable the department to do this thoroughly and expeditiously and also to enable it to make such minor changes on submarines as its studies may suggest, the chief constructor has indicated to the committee that it would be desirable to increase the original Budget estimate for 'construction and repair of vessels' by $200,000. A supplemental estimate has been presented in consonance with this view and the committee has responded with an additional appropriation in that sum, to be available immediately."
Further authorization of the employment of experts is included in the abovementioned appropriation for the Bureau of Construction and Repair by the following item:
"For payment of part-time or intermittent employment in the District of Columbia, or elsewhere, of such scientists and technicists as may be contracted for by the Secretary of the Navy, in his discretion, at a rate of pay not exceeding $20 per diem for any person so employed."
After conferring with the Comptroller General of the United States, and in accordance with his opinion, the department has arranged with Rear Admiral D. W. Taylor (C. C.), United States Navy (retired), Dr. W. R. Whitney, Mr. Thomas A. Scott, and Dr. S. W. Stratton to serve as experts and has ordered Rear Admiral Joseph Strauss, United States Navy (retired), to cooperate on active duty. Mr. John F. Stevens originally agreed to serve but subsequently found he was unable to do so.
With the exception of Doctor Stratton, these are the experts referred to by Senator Hale, in the Senate on January 20, 1928, as the ones the President would probably appoint.
CURTIS D. WILBUR.
(Thereupon, at 1.30 o'clock p. m., the subcommittee adjourned, subject to the call of the chairman.)
Andrew, Hon. A. Piatt, M. C., letter to Secretary of the Navy..
Beuret, Rear Admiral J. D., United States Navy, testimony before
Billard, Rear Admiral Frederick C., commandant, United States Coast
Board of inquiry, United States Coast Guard:
Opinions and findings...
Dunbar, Lieut. Commander P. H., United States Navy.
Ellsberg, Commander, United States Naval Reserve Force, recommen-
French submarine operations_
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Foreign practices and devices.
Gamble, Captain, United States Coast Guard__.
Griffin, Hon. Anthony J., M. C.:
Devices on foreign submarines..
Letter of to Congressman Andrew...
Hoover, Commander J. H., United States Navy..
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Hovgaard, Hon. William, Efficiency versus Safety..
Hughes, Admiral Charles F., United States Navy, Chief of Naval Opera-
Hutchison, Dr. Miller Reese, Ph. D...
Jones, Commander R. K., United States Navy, naval record of
Coast Guard regulations re..