B-4764, JULY 21, 1939, 19 COMP. GEN. 90

B-4764, JULY 21, 1939, 19 COMP. GEN. 90

PAY - SUBMARINE DUTY - PENDING SALVAGE OF SUNKEN SUBMARINE THE ACT OF APRIL 9, 1928, 45 STAT. 412, AS AMENDED BY THE ACT OF JANUARY 16, 1936, 49 STAT. 1091, PROVIDING THAT NAVY OFFICERS ON "DUTY ABOARD A SUBMARINE OF THE NAVY" SHALL RECEIVE ADDITIONAL PAY "WHILE SO SERVING" LIMITS THE RIGHT TO SUCH PAY TO PERIODS THE OFFICER IS ACTUALLY ON DUTY ON BOARD A SUBMARINE, AND PAYMENT OF EXTRA COMPENSATION AS SUBMARINE PAY TO SURVIVING OFFICERS OF THE U.S.S. SQUALUS AFTER THE DATE OF THE SINKING OF THAT VESSEL IS UNAUTHORIZED, NOTWITHSTANDING THE VESSEL HAS NOT BEEN DECOMMISSIONED PENDING SALVAGE OPERATIONS. WHILE THE ACT OF APRIL 9, 1928, 45 STAT. 412, AS AMENDED BY THE ACT OF JANUARY 16, 1936, 49 STAT. 1091, PROVIDING THAT NAVY ENLISTED MEN "ASSIGNED TO DUTY ABOARD A SUBMARINE" SHALL RECEIVE ADDITIONAL PAY, PERMITS A TEMPORARY OMISSION OF ACTUAL SERVICE WITHOUT LOSS OF ADDITIONAL PAY WHERE THE ASSIGNMENT TO DUTY CONTINUES AND THE ABSENCE DOES NOT EXCEED 30 DAYS, THE SURVIVING ENLISTED MEN OF THE SUNKEN U.S.S. SQUALUS ARE NOT ENTITLED TO EXTRA COMPENSATION AS SUBMARINE PAY AFTER THE DATE OF THE SINKING, NOTWITHSTANDING THE VESSEL HAS NOT BEEN DECOMMISSIONED PENDING SALVAGE OPERATIONS, IT BEING IMPOSSIBLE FOR THEM TO RETURN TO DUTY WITHIN 30 DAYS OF THE SINKING OF THE VESSEL.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JULY 21, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 1, 1939, AS FOLLOWS:

THERE IS FORWARDED HEREWITH FOR YOUR CONSIDERATION A LETTER FROM THE SUPPLY OFFICER OF AUXILIARIES, NAVY YARD, PORTSMOUTH, N.H., DATED JUNE 20, 1939, WITH ACCOMPANYING INDORSEMENTS AND INCLOSURES, REQUESTING YOUR DECISION ON THE QUESTION AS TO WHETHER HE IS AUTHORIZED TO CREDIT AND PAY THE SURVIVORS (OFFICERS AND ENLISTED MEN) OF THE U.S.S. SQUALUS EXTRA COMPENSATION AS SUBMARINE PAY, PENDING SALVAGE OPERATIONS, IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF APRIL 9, 1928 (45 STAT. 412), AS AMENDED BY THE ACT OF JANUARY 16, 1936 (49 STAT. 1091; 34 U.S. CODE, SUP. IV, SECTION 886).

ATTENTION IS INVITED TO THE STATEMENT OF THE ACTING CHIEF OF NAVAL OPERATIONS IN THE ATTACHED COPY OF ST INDORSEMENT OF JUNE 8, 1939, TO THE EFFECT THAT IT IS NOT DESIRED TO DECOMMISSION THE U.S.S. SQUALUS UNTIL SHE HAS BEEN RAISED AND TITLE B EQUIPMENT TURNED IN "OR UNTIL SALVAGE HAS BEEN FINALLY ABANDONED; " AND THAT, ACCORDINGLY, UNTIL SUCH TIME AS THE U.S.S. SQUALUS IS DECOMMISSIONED IT IS BELIEVED THAT HER OFFICERS AND CREW, UNLESS DETACHED, SHOULD REMAIN IN PRESENT DUTY STATUS.

ATTENTION IN THIS CONNECTION IS FURTHER INVITED TO THE PROVISIONS OF ARTICLE 21 OF THE ARTICLES FOR THE GOVERNMENT OF THE NAVY (SECTION 1624, REVISED STATUTES), WHICH PROVIDES, IN PART, THAT WHEN THE CREW OF ANY VESSEL OF THE UNITED STATES ARE SEPARATED FROM THEIR VESSEL "BY MEANS OF HER WRECK, LOSS, OR DESTRUCTION, ALL THE COMMAND AND AUTHORITY GIVEN TO THE OFFICERS OF SUCH VESSEL SHALL REMAIN IN FULL FORCE UNTIL SUCH SHIP'S COMPANY SHALL BE REGULARLY DISCHARGED FROM OR ORDERED AGAIN INTO SERVICE, OR UNTIL A COURT MARTIAL OR COURT OF INQUIRY SHALL BE HELD TO INQUIRE INTO THE LOSS OF SAID VESSEL.' IN ACCORDANCE WITH THIS REQUIREMENT IT WILL BE SEEN THAT THE CREW OF THE U.S.S. SQUALUS, INCLUDING BOTH OFFICERS AND ENLISTED MEN, CONTINUED, AFTER THE SINKING OF THAT VESSEL ON MAY 3, (23), 1939, AS A UNIT ASSIGNED TO SUBMARINE DUTY ABOARD THAT VESSEL EXCEPT, OF COURSE, WHERE ORDERS FOR DETACHMENT FROM SUCH VESSEL MAY HAVE BEEN ISSUED IN THE MEANTIME IN ANY PARTICULAR CASE.

THE ACT OF APRIL 9, 1928, 45 STAT. 412, AS AMENDED BY THE ACT OF JANUARY 16, 1936, 49 STAT. 1091 (34 U.S.C. 886) PROVIDES:

* * * THAT HEREAFTER ALL OFFICERS OF THE NAVY ON DUTY ON BOARD A SUBMARINE OF THE NAVY, INCLUDING SUBMARINES UNDER CONSTRUCTION FOR THE NAVY FROM THE TIME BUILDERS' TRIALS COMMENCE, OR ON DUTY AT SUBMARINE ESCAPE TRAINING TANKS, THE NAVY DEEP SEA DIVING SCHOOL, OR THE NAVAL EXPERIMENTAL DIVING UNIT, SHALL, WHILE SO SERVING, RECEIVE 25 PERCENTUM ADDITIONAL OF THE PAY FOR THEIR RANK AND SERVICE AS NOW PROVIDED BY LAW; AND AN ENLISTED MAN OF THE UNITED STATES NAVY ASSIGNED TO DUTY ABOARD A SUBMARINE OF THE NAVY, INCLUDING SUBMARINES UNDER CONSTRUCTION FOR THE NAVY FROM THE TIME BUILDERS' TRIALS COMMENCE, OR TO THE DUTY OF DIVING, SHALL, IN LIEU OF THE ADDITIONAL PAY NOW AUTHORIZED, RECEIVE PAY, UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY, AT THE RATE OF NOT LESS THAN $5 PER MONTH AND NOT EXCEEDING $30 PER MONTH, IN ADDITION TO THE PAY AND ALLOWANCES OF HIS RATING AND SERVICE: * * *

THE LANGUAGE OF THE AMENDED ACT, INSOFAR AS AFFECTS AN OFFICER'S RIGHT TO THE 25 PERCENTUM ADDITIONAL PAY FOR "DUTY ABOARD A SUBMARINE OF THE NAVY" AND "WHILE SO SERVING," IS IDENTICAL WITH THE LANGUAGE IN THE ORIGINAL ACT OF APRIL 9, 1928, WHICH HAS BEEN CONSTRUED AS NOT AUTHORIZING THE 25 PERCENTUM ADDITIONAL PAY WHILE THE OFFICER IS ABSENT FROM THE VESSEL ON LEAVE OR BY REASON OF SICKNESS. 7 COMP. GEN. 729; 8 ID. 162. THIS CONSTRUCTION LIMITING RIGHT OF OFFICERS TO ADDITIONAL PAY FOR SUBMARINE DUTY TO PERIODS THE OFFICER IS ACTUALLY ON DUTY ON BOARD A SUBMARINE OF THE NAVY IS SUPPORTED BY THE LANGUAGE OF THE ACT AND REPORT OF THE SENATE COMMITTEE ON NAVAL AFFAIRS ON THE BILL. THE SAME LIMITATION HAS NOT BEEN APPLIED TO ENLISTED MEN, THEIR RIGHT TO THE ADDITIONAL PAY BEING BASED ON ASSIGNMENT TO THE DUTY CONTINUES, AS WHEN MEN ARE ON LEAVE, SICK IN HOSPITALS, ETC., UNDER CONDITIONS ENTITLING THEM TO THEIR REGULAR PAY WHEN THERE IS A RETURN TO DUTY ON THE SUBMARINE AND THE ABSENCE DOES NOT EXCEED 30 DAYS. A-84974, APRIL 13, 1937.

THE LAW MAKES NO PROVISION FOR EXTENDING THE RIGHT TO ADDITIONAL PAY TO OFFICERS FOR ANY PERIOD IT IS IMPOSSIBLE FOR THEM TO ACTUALLY PERFORM SERVICE ON BOARD A VESSEL, AS IN THIS CASE. THE RULE AS TO TEMPORARY OMISSION OF DUTY NOT TO EXCEED 30 DAYS IS NOT APPLICABLE TO THE ENLISTED MEN CONCERNED AS THERE CANNOT BE A RETURN TO DUTY ON THE U.S.S. SQUALUS WITHIN 30 DAYS. ARTICLE 20 OF ARTICLES FOR THE GOVERNMENT OF THE NAVY (34 U.S.C. 1200) MERELY CONTINUES THE MILITARY AUTHORITY OF THE OFFICERS OVER A CREW OF A VESSEL WRECKED, LOST, OR DESTROYED AND SEEMS NOT TO BE IN POINT IN THE PRESENT MATTER.

ACCORDINGLY, YOU ARE ADVISED THAT THE DISBURSING OFFICER CONCERNED IS NOT AUTHORIZED TO CREDIT AND PAY THE SURVIVORS (OFFICES AND ENLISTED MEN) OF THE U.S.S. SQUALUS EXTRA COMPENSATION AS SUBMARINE PAY AFTER DATE OF THE SINKING OF THAT VESSEL, MAY 23, 1939.