B-130529, APRIL 16, 1957, 36 COMP. GEN. 709

B-130529, APRIL 16, 1957, 36 COMP. GEN. 709

MILITARY PERSONNEL - NAVAL ENLISTED MEN SERVING ON VESSELS IN FOREIGN WATERS - RETENTION AFTER EXPIRATION OF ENLISTMENT - INCREASED PAY NAVY REGULATIONS WHICH REQUIRE SUBMISSION TO THE GENERAL ACCOUNTING OFFICE OF CLAIMS OF ENLISTED MEMBERS FOR THE 25 PERCENT INCREASE IN BASIC PAY WHEN THEIR ENLISTMENTS EXPIRE WHILE SERVING ON A VESSEL IN FOREIGN WATERS AND THEY ARE RETAINED ON ACTIVE DUTY IN THE PUBLIC INTEREST MAY BE REVISED TO PERMIT IMMEDIATE PAYMENT OF THE INCREASE BY THE SHIP'S DISBURSING OFFICERS. ENLISTED MEMBERS OF THE NAVAL RESERVE WHO ARE SERVING ON VESSELS IN FOREIGN WATERS WHEN THEIR PERIOD OF OBLIGATED SERVICE EXPIRES BUT WHO ARE NOT RETAINED ON ACTIVE DUTY BEYOND THE TERMINATION OF ENLISTMENT ARE NOT ENTITLED TO THE INCREASED PAY PROVIDED IN 10 U.S.C. 5540; HOWEVER, IF THE RESERVE MEMBER IS RETAINED BEYOND THE NORMAL DATE HIS TERM OF ENLISTMENT WOULD EXPIRE, HE BECOMES ELIGIBLE FOR THE INCREASED PAY. EVIDENCE TO SUPPORT INCREASED PAY PROVIDED IN 10 U.S.C. 5540 FOR ENLISTED PERSONNEL OF THE NAVAL SERVICE WHO ARE SERVING ON VESSELS IN FOREIGN WATERS WHEN THEIR ENLISTMENT EXPIRES AND WHO ARE TEMPORARILY RETAINED ON ACTIVE DUTY SHOULD INCLUDE THE MILITARY PAY ORDER AUTHORIZING THE PAY AND A CERTIFICATION THAT THE RETENTION WAS AUTHORIZED BY THE SENIOR OFFICER PRESENT AFLOAT AS ESSENTIAL TO THE PUBLIC INTEREST.

TO THE SECRETARY OF THE NAVY, APRIL 16, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF JANUARY 29, 1957, FROM THE ASSISTANT SECRETARY OF THE NAVY ( FINANCIAL MANAGEMENT), REQUESTING DECISION ON CERTAIN MATTERS RELATING TO THE 25 PERCENT INCREASE IN BASIC PAY WHICH IS AUTHORIZED BY 10 U.S.C. 5540 FOR ENLISTED PERSONNEL OF THE NAVAL SERVICE TEMPORARILY RETAINED IN SERVICE, UNDER CERTAIN CONDITIONS, AFTER EXPIRATION OF ENLISTMENT.

SECTION 5540, CODIFIED FROM SECTION 1422 OF THE REVISED STATUTES (34 U.S.C. 201, 1952 EDITION), PROVIDES THAT EXCEPT IN TIME OF WAR, EACH ENLISTED MEMBER OF THE NAVAL SERVICE WHOSE ENLISTMENT EXPIRES WHILE HE IS SERVING ON A VESSEL IN FOREIGN WATERS, AND WHO IS RETAINED ON ACTIVE DUTY IN THE PUBLIC INTEREST (AS DETERMINED BY THE SENIOR OFFICER PRESENT AFLOAT) PENDING RETURN OF THE VESSEL TO THE UNITED STATES, SHALL BE ENTITLED TO AN INCREASE IN BASIC PAY OF 25 PERCENT WHILE SO RETAINED AND SHALL BE DISCHARGED NOT LATER THAN 30 DAYS AFTER HIS ARRIVAL IN THE UNITED STATES.

IT IS STATED THAT UNDER REGULATIONS NOW IN EFFECT (PARAGRAPH 1044232 3, NAVY COMPTROLLER MANUAL), ALL CLAIMS FOR THIS INCREASE IN BASIC PAY MUST BE SUBMITTED HERE FOR SETTLEMENT, SUPPORTED BY A CERTIFICATION FROM THE COMMANDING OFFICER STATING THE PERIOD OF DETENTION, THE FACT THAT THE DETENTION WAS ESSENTIAL TO THE PUBLIC INTEREST, AND THE LOCATION OF THE VESSEL AT THE TIME THE MEMBER'S ENLISTMENT EXPIRED. IT IS REPORTED THAT UNDER CONDITIONS SIMILAR TO THOSE WHICH EXISTED LAST NOVEMBER AND WHICH COULD ARISE AGAIN, NECESSITATING THE MAINTENANCE OF VESSELS OPERATING IN CERTAIN FOREIGN AREAS IN A STATE OF MAXIMUM COMBAT READINESS, THE SENIOR OFFICER PRESENT AFLOAT MIGHT FIND IT NECESSARY IN THE PUBLIC INTEREST TO RETAIN CONSIDERABLE NUMBERS OF ENLISTED MEMBERS OF THE REGULAR NAVY BEYOND THE TERMINATION DATE OF THEIR ENLISTMENTS AND ENLISTED RESERVISTS BEYOND THE NORMAL EXPIRATION DATE OF THEIR OBLIGATED PERIOD OF SERVICE. APPARENTLY, MANY OF THE CREW MEMBERS MIGHT BE SO AFFECTED, IF DUE TO CHANGED CONDITIONS, IT BECAME NECESSARY TO KEEP A SHIP IN FOREIGN WATERS FOR A LONGER PERIOD OF TIME THAN WAS ANTICIPATED WHEN THE SHIP LEFT THE UNITED STATES.

IN VIEW OF THE COMPARATIVELY LARGE NUMBER OF MEMBERS WHO COULD BE AFFECTED IN SUCH CIRCUMSTANCES, IT IS PROPOSED TO REVISE THE REGULATIONS TO PERMIT IMMEDIATE PAYMENT OF THE 25 PERCENT INCREASE IN BASIC PAY BY THE SHIP'S DISBURSING OFFICER TO MEMBERS OF BOTH THE REGULAR NAVY AND THE NAVAL RESERVE, THE PAYMENT IN EACH CASE TO BE SUBSTANTIATED BY A MILITARY PAY ORDER ( DD FORM 114) AUTHORIZING THE PAYMENT AND CONTAINING A CERTIFICATION THAT THE SENIOR OFFICER PRESENT AFLOAT CONSIDERS THE RETENTION TO BE ESSENTIAL TO THE PUBLIC INTEREST. IT IS SUGGESTED THAT THE CURRENT REGULATIONS MAY HAVE BEEN BASED ON CONDITIONS WHERE DOUBTS EXISTED AS TO WHETHER THE RETENTION WAS ESSENTIAL TO THE PUBLIC INTEREST. IN SUCH CIRCUMSTANCES, IT APPARENTLY WAS CONSIDERED APPROPRIATE THAT THE CLAIMS BE SUBMITTED TO THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT. COMPARE 21 COMP. GEN. 425. HOWEVER, IN THE LIGHT OF THE INFORMATION NOW FURNISHED, AND REPRESENTATIONS NOW MADE, WE SEE NO SUBSTANTIAL REASON WHY THE REGULATIONS SHOULD NOT BE REVISED TO PERMIT PAYMENT OF THE INCREASE IN BASIC PAY BY THE SHIP'S DISBURSING OFFICER IN CASES OF THIS TYPE.

OUR COMMENTS ON THE FOLLOWING THREE QUESTIONS ARE REQUESTED:

A. ARE MEMBERS OF THE NAVAL RESERVE RETAINED BEYOND THE EXPIRATION OF THEIR PERIOD OF OBLIGATED SERVICE BUT NOT BEYOND THE TERMINATION OF THEIR ENLISTMENT ENTITLED TO THE INCREASE OF 25 PERCENT IN BASIC PAY?

B. ARE MEMBERS OF THE NAVAL RESERVE RETAINED BEYOND THE TERMINATION OF THEIR ENLISTMENT ENTITLED TO THE INCREASE OF 25 PERCENT IN BASIC PAY?

C. IN THE AUDIT OF DISBURSING OFFICERS ACCOUNTS WILL YOUR OFFICE REQUIRE ANY SUBSTANTIATION FOR PAYMENT OF INCREASE OF 25 PERCENT IN BASIC PAY IN ADDITION TO A MILITARY PAY ORDER AUTHORIZING THE PAYMENT AND CONTAINING A CERTIFICATION THAT SUCH RETENTION WAS AUTHORIZED BY THE SENIOR OFFICER PRESENT AFLOAT AS ESSENTIAL TO THE PUBLIC INTEREST?

MEMBERS OF THE NAVAL RESERVE WHO ARE RETAINED ON ACTIVE DUTY BEYOND THE EXPIRATION OF THEIR PERIOD OF OBLIGATED SERVICE WHICH DOES NOT COINCIDE WITH THE TERMINATION OF THEIR ENLISTMENT, CONTINUE TO BE MEMBERS OF THE NAVAL RESERVE AFTER THEIR OBLIGATED ACTIVE SERVICE IS COMPLETED. THE STATUTE DOES NOT DIFFERENTIATE BETWEEN MEMBERS OF THE REGULAR NAVY AND MEMBERS OF THE NAVAL RESERVE AND SINCE ONLY MEMBERS WHO ARE SERVING ON A VESSEL WHEN THEIR TERM OF ENLISTMENT EXPIRES ARE ENTITLED TO THE INCREASED PAY, AN ENLISTED MEMBER OF THE NAVAL RESERVE IS NOT ENTITLED TO SUCH PAY UNLESS HE IS RETAINED ON ACTIVE DUTY AFTER THE NORMAL DATE HIS TERM OF ENLISTMENT WOULD EXPIRE. QUESTION "A" IS ANSWERED IN THE NEGATIVE AND QUESTION "B" IN THE AFFIRMATIVE.

QUESTION "C" IS ANSWERED IN THE NEGATIVE BUT WITH THE RESERVATION THAT IF, AT SOME FUTURE TIME, EXPERIENCE SHOULD INDICATE THAT ADDITIONAL EVIDENCE IS NECESSARY TO MAKE A PROPER AUDIT OF THE PAYMENTS, THE NECESSARY ADDITIONAL EVIDENCE WILL BE REQUIRED.