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B-145441, JULY 11, 1962, 42 COMP. GEN. 24

B-145441 Jul 11, 1962
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PERIODS SEA DUTY PAY TO NAVY ENLISTED CREW MEMBERS OF SUBMARINES DURING THE 150- DAY PERIOD THE SUBMARINES ARE UNDERGOING ALTERATIONS AND REPAIRS. BERTHING AND MESSING FACILITIES ABOARD THE CRAFTS ARE INOPERATIVE BUT AVAILABLE NEARBY. AS THE PERIOD OF TIME DURING WHICH FACILITIES ARE TEMPORARILY OUT OF OPERATION WITHIN THE MEANING OF THE EXECUTIVE ORDER SHOULD NOT VARY ON THE BASIS OF THE TYPE VESSEL INVOLVED. 1962: REFERENCE IS MADE TO LETTER OF MAY 14. FROM YOUR ADMINISTRATIVE ASSISTANT REQUESTING DECISION CONCERNING THE PROPRIETY OF PAYMENT OF SEA DUTY PAY TO ENLISTED CREW MEMBERS OF SUBMARINES DURING PERIODS SUCH CRAFT ARE UNDERGOING ALTERATIONS AND REPAIRS. YOUR REQUEST WAS ASSIGNED SUBMISSION NO.

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B-145441, JULY 11, 1962, 42 COMP. GEN. 24

PAY - ADDITIONAL - SEA DUTY - VESSEL REPAIR, ETC., PERIODS SEA DUTY PAY TO NAVY ENLISTED CREW MEMBERS OF SUBMARINES DURING THE 150- DAY PERIOD THE SUBMARINES ARE UNDERGOING ALTERATIONS AND REPAIRS, AND BERTHING AND MESSING FACILITIES ABOARD THE CRAFTS ARE INOPERATIVE BUT AVAILABLE NEARBY, MAY NOT BE PAID ON THE BASIS THAT DUE TO THE PECULIARITIES OF CONSTRUCTION, SUBMARINE OVERHAULS PRESENT ENTIRELY DIFFERENT PROBLEMS THAN THOSE CONSIDERED IN 40 COMP. GEN. 618, A DEPARTURE FROM THE CONSTRUCTION OF THE TERM "TEMPORARILY" AS USED IN SECTION 2 (A) (1) (II) OF EXECUTIVE ORDER NO. 10821 TO MEAN A PERIOD NOT IN EXCESS OF 90 DAYS BEING UNWARRANTED, AS THE PERIOD OF TIME DURING WHICH FACILITIES ARE TEMPORARILY OUT OF OPERATION WITHIN THE MEANING OF THE EXECUTIVE ORDER SHOULD NOT VARY ON THE BASIS OF THE TYPE VESSEL INVOLVED, AND, ALSO, THE EXTENT OF THE TERM SHOULD BE THE SAME FOR ALL MEMBERS WHETHER ASSIGNED TO VESSELS OR SUBMARINES.

TO THE SECRETARY OF THE NAVY, JULY 11, 1962:

REFERENCE IS MADE TO LETTER OF MAY 14, 1962, FROM YOUR ADMINISTRATIVE ASSISTANT REQUESTING DECISION CONCERNING THE PROPRIETY OF PAYMENT OF SEA DUTY PAY TO ENLISTED CREW MEMBERS OF SUBMARINES DURING PERIODS SUCH CRAFT ARE UNDERGOING ALTERATIONS AND REPAIRS. YOUR REQUEST WAS ASSIGNED SUBMISSION NO. SSN-643 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU REFER TO OUR DECISION OF MAY 10, 1961, B-145441, 40 COMP. GEN. 618, IN WHICH WE EXPRESSED THE VIEW THAT ALTERATIONS OR REPAIRS TO A VESSEL WHICH PLACE THE MESSING OR BERTHING FACILITIES, OR BOTH, OUT OF OPERATION FOR PERIODS NOT IN EXCESS OF 90 DAYS PROPERLY MAY BE CONSIDERED AS COMING WITHIN THE PURVIEW OF THE TERM "TEMPORARILY" AS USED IN THE PRESIDENTIAL REGULATIONS (SECTION 2, EXECUTIVE ORDER NO. 10168, OCTOBER 11, 1950, AS AMENDED BY EXECUTIVE ORDER NO. 10821, MAY 20, 1959) PROMULGATED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 206 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 811, 37 U.S.C. 237. UNDER AUTHORITY OF SECTION 8 OF EXECUTIVE ORDER NO. 10168 (AUTHORIZING THE SECRETARIES CONCERNED TO PRESCRIBE SUPPLEMENTARY REGULATIONS DEEMED NECESSARY OR DESIRABLE TO CARRY OUT THE PROVISIONS OF THE EXECUTIVE ORDER) THE HOLDING IN THE DECISION OF MAY 10, 1961, HAS BEEN INCORPORATED IN PARAGRAPHS 1044060-2A7 AND 2B7, NAVY COMPTROLLER MANUAL, VOLUME 4, CHAPTER 4, BY CHANGE NO. 109, OCTOBER 31, 1961.

IT IS INDICATED THAT WHILE THE HOLDING OF THE CITED DECISION MAY HAVE RESOLVED THE PROBLEM PRESENTED IN THE REQUEST OF MARCH 24, 1961, WHICH RELATED TO ENLISTED CREW MEMBERS OF SURFACE SHIPS AND VESSELS, GENERALLY, CONSIDERATION WAS NOT GIVEN AT THE TIME OF SUCH REQUEST TO THE FACT THAT DUE TO DIFFERENCES IN CONSTRUCTION, SUBMARINE OVERHAULS PRESENT PROBLEMS ENTIRELY DIFFERENT FROM THOSE OF OTHER TYPE SHIPS. AMONG SUCH DIFFERENCES YOU LIST THE FOLLOWING:

(1) SUBMARINES UNDERGOING REGULAR OVERHAULS ARE NORMALLY SCHEDULED FOR APPROXIMATELY A 5-MONTH PERIOD IN THE SHIPYARD.

(2) THEY ARE NOT PLACED OUT OF COMMISSION DURING THE OVERHAUL PERIOD.

(3) DUE TO LACK OF SPACE IT IS NOT PRACTICAL TO CONTINUE THE OPERATION OF BERTHING AND MESSING FACILITIES ABOARD SUBMARINES DURING ANY PART OF THE PERIOD OF OVERHAUL, AND

(4) TO PERMIT READY AVAILABILITY OF THE CREW, IT IS NECESSARY TO REESTABLISH MESSING AND BERTHING FACILITIES IN THE IMMEDIATE VICINITY OF THE SUBMARINES.

IN CONNECTION WITH THE MESSING AND BERTHING FACILITIES MENTIONED ABOVE, IT IS STATED TO BE CUSTOMARY AT MOST SHIPYARDS TO ESTABLISH MESSING AND BERTHING FACILITIES ON BOARD A BARGE OR IN A NEARBY BUILDING FOR USE OF THE ENLISTED CREW MEMBERS OF SUBMARINES UNDERGOING OVERHAUL. YOU POINT OUT THAT SUCH MESSING FACILITIES ARE OPERATED BY ONE OF THE COMMISSIONED OFFICERS OF THE SUBMARINE UNDERGOING ALTERATIONS OR REPAIRS UNDER THE ACCOUNTING NUMBER OF HIS SHIP AND THAT, SINCE A SUBMARINE MESS AS SUCH ACTUALLY IS OPERATED, THE ENLISTED CREW MEMBERS ARE NOT ELIGIBLE FOR COMMUTED RATIONS.

ALSO, IT IS POINTED OUT THAT DUE TO THE PECULIARITIES OF SUBMARINE CONSTRUCTION WHICH REQUIRES AN AVERAGE OF 150 DAYS IN SHIPYARDS FOR ROUTINE ALTERATIONS AND REPAIRS, ENLISTED CREW MEMBERS OF SUBMARINES ARE BARRED FROM RECEIVING SEA DUTY PAY FOR ANY PART OF SUCH PERIOD OF ALTERATIONS OR REPAIRS UNDER THE "90-DAY" RULE NOW CONTAINED IN THE SUPPLEMENTARY REGULATIONS. IN CONTRAST TO THIS SITUATION YOU CALL ATTENTION TO THE FACT THAT IN THE CASE OF LARGER VESSELS WHERE SPACE IS ADEQUATE FOR THE PURPOSE AND THE VESSEL IS NOT PLACED IN AN "ACTIVE" STATUS (SEE ARTICLE 2002, NAVY REGULATIONS, 1948), MESSING AND BERTHING FACILITIES EITHER CONTINUE IN OPERATION ABOARD SHIP OR ARE NOT PLACED OUT OF OPERATION FOR MORE THAN 90 DAYS AND CONSEQUENTLY IN SUCH CASES THE ENLISTED CREW MEMBERS OF SUCH VESSELS CONTINUE TO RECEIVE SEA DUTY PAY--- A DISTINCT FINANCIAL ADVANTAGE OVER ENLISTED CREW MEMBERS OF SUBMARINES UNDERGOING ALTERATIONS OR REPAIRS. IN THESE CIRCUMSTANCES YOU REQUEST WHETHER THIS OFFICE WOULD OBJECT TO A FURTHER REVISION OF THE NAVY COMPTROLLER MANUAL, PARAGRAPH 1044060, WHICH WOULD PROVIDE THAT "ENLISTED MEMBERS ARE ENTITLED TO SPECIAL PAY FOR SEA DUTY WHILE PERMANENTLY ASSIGNED TO A SUBMARINE INCLUDING PERIODS DURING WHICH MESSING OR BERTHING FACILITIES, OR BOTH, ARE TEMPORARILY OUT OF OPERATION TO PERMIT ALTERATIONS OR REPAIRS FOR A PERIOD CONTEMPLATED TO BE 150 DAYS OR LESS.' SUCH REVISION IS SUGGESTED AS BEING DESIRABLE IN ORDER TO REMOVE THE INEQUITABLE SITUATION NOW CONSIDERED TO PREVAIL UNDER CURRENT REGULATIONS.

ADDITIONAL PAY FOR SEA DUTY ACCRUES TO ENLISTED MEMBERS OF THE NAVAL SERVICE WHO MEET THE REQUIREMENTS SET FORTH IN THE PRESIDENTIAL REGULATIONS (EXECUTIVE ORDER NOS. 10168 AND 10821) AND THE CONDITIONS PRESCRIBED IN THE SUPPLEMENTARY REGULATIONS CONTAINED IN PARAGRAPH 1044060, NAVY COMPTROLLER MANUAL, VOLUME 4, CHAPTER 4. SECTION 2 (A) OF EXECUTIVE ORDER NO. 10168, AS AMENDED BY EXECUTIVE ORDER NO. 10821, MAY 20, 1959, IN PERTINENT PART PROVIDES THAT---

FOR ADDITIONAL-PAY PURPOSES * * * THE TERM "SEA DUTY" SHALL MEAN DUTY PERFORMED BY ENLISTED MEMBERS:

(1) WHILE PERMANENTLY ASSIGNED TO A VESSEL * * * INCLUDING--- * * *

(II) PERIODS DURING WHICH MESSING OR BERTHING FACILITIES, OR BOTH, ARE TEMPORARILY OUT OF OPERATION TO PERMIT ALTERATIONS OR REPAIRS.

NEITHER THE STATUTE NOR THE PRESIDENTIAL REGULATIONS DEFINE OR PLACE ANY LIMITATION ON THE TERM "TEMPORARILY" AS USED IN SECTION 2 (A) (1) (II). SEE DECISION OF MAY 10, 1961, 40 COMP. GEN. 618, 621. IT SEEMS EVIDENT, HOWEVER, THAT THE TERM "TEMPORARILY" WAS INTENDED TO INCORPORATE INTO THE STRUCTURE OF THE PRESIDENTIAL REGULATIONS GOVERNING PAYMENT OF ADDITIONAL PAY FOR SEA DUTY SOME ELEMENT OF LIMITATION IN ADDITION TO AND ASIDE FROM THE NORMAL AND CUSTOMARY MEANING OF THE TERM ,TEMPORARILY" AS REFERRING TO SOMETHING NOT "PERMANENT.' OTHERWISE, THE WORD "TEMPORARILY" COULD HAVE BEEN OMITTED COMPLETELY FROM SECTION 2 (A) (1) (II) WITHOUT AFFECTING ITS BASIC OPERATION, SINCE THE PHRASE "OUT OF OPERATION TO PERMIT ALTERATIONS OR REPAIRS" BY ITSELF DENOTES IMPERMANENCE. CONSEQUENTLY, THE CONCLUSION WAS REACHED IN OUR DECISION OF MAY 10, 1961, THAT THE TERM "TEMPORARILY" SHOULD BE ACCORDED A REASONABLE AREA OF APPLICATION AND THAT ALTERATIONS AND REPAIRS TO A VESSEL WHICH PLACE THE MESSING OR BERTHING FACILITIES, OR BOTH, ABOARD THAT VESSEL OUT OF OPERATION FOR PERIODS NOT IN EXCESS OF 90 DAYS MAY BE CONSIDERED AS TEMPORARY AND WITHIN THE PURVIEW OF THE EXECUTIVE ORDER, THUS ALLOWING CONTINUATION OF SEA DUTY PAY UNDER THOSE CIRCUMSTANCES TO ENLISTED MEMBERS OF SUCH VESSELS FOR PERIODS NOT IN EXCESS OF 90 DAYS. THUS VIEWED, THE PERIOD OF TIME WHICH MAY BE CONSIDERED TO BE A PERIOD DURING WHICH SUCH FACILITIES ARE "TEMPORARILY" OUT OF OPERATION WITHIN THE MEANING OF THE EXECUTIVE ORDER SHOULD NOT VARY DEPENDING ON THE TYPE OF VESSEL INVOLVED. THE TERM "TEMPORARILY" CANNOT BE GIVEN AN INDEFINITE OR VARIABLE MEANING (90 DAYS AS TO ONE GROUP OF NAVAL PERSONNEL, 150 DAYS AS TO ANOTHER GROUP). THE EXTENT OF THE TERM SHOULD BE THE SAME FOR ALL ENLISTED PERSONS IN THE NAVY IRRESPECTIVE WHETHER THEY ARE ASSIGNED TO A LARGE SURFACE VESSEL OR TO A SUBMARINE.

IN THE ABSENCE OF A SPECIFIC DEFINITION (BY STATUTE OR BY EXECUTIVE ORDER) OF THE TERM ,TEMPORARILY" AS USED IN SECTION 2 (A) (1) (II), WE PERCEIVE NO PROPER BASIS TO DEPART FROM, OR MAKE ANY EXCEPTION TO, THE CONCLUSION REACHED IN OUR DECISION OF MAY 10, 1961. YOUR REQUEST IS ANSWERED ACCORDINGLY.

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