B-124474, FEBRUARY 20, 1959, 38 COMP. GEN. 562

B-124474, FEBRUARY 20, 1959, 38 COMP. GEN. 562

MILITARY PERSONNEL - COAST GUARD - SEA DUTY PAY - PATROL BOATS COAST GUARD PATROL BOATS IN THE 83- AND 95-FOOT CLASS WHICH ARE USED PRIMARILY FOR DUTY IN INSHORE AND COASTAL WATERS MUST BE REGARDED AS VESSELS RESTRICTED TO INLAND WATERS WITHIN THE MEANING OF EXECUTIVE ORDER NO. 10168, WHICH PRECLUDES SEA-DUTY PAY TO ENLISTED MEMBERS ASSIGNED TO SUCH BOATS, EXCEPT WHEN THE VESSELS ARE IN FACT KEPT OUTSIDE INLAND WATERS AT LEAST FIVE PERCENT OF THE TIME, AND IN ABSENCE OF AUTHORITY TO WAIVE THE APPLICATION OF THE EXECUTIVE ORDER OR TO REMIT ERRONEOUS SEA-DUTY PAYMENTS MADE CONTRARY TO REGULATION, DISCONTINUANCE OF COLLECTION ACTION IS NOT AUTHORIZED. IN CASE THE ACTUAL HOURS OF OPERATION OF COAST GUARD PATROL BOATS OUTSIDE INLAND WATERS FOR PURPOSE OF ENTITLING ENLISTED MEMBERS ASSIGNED TO SUCH BOATS TO SEA-DUTY PAY CANNOT BE DEFINITELY ESTABLISHED, A DETERMINATION BY THE PROPER COAST GUARD OFFICIAL HAVING KNOWLEDGE OF THE OPERATING AREAS AND MISSIONS OF THE NUMBER OF HOURS OF DUTY OUTSIDE INLAND WATERS WILL BE ACCEPTABLE PROVIDED THAT THE DETERMINATION IS SUPPORTED BY EVIDENCE.

TO THE SECRETARY OF THE TREASURY, FEBRUARY 20, 1959:

FURTHER REFERENCE IS MADE TO LETTER OF DECEMBER 9, 1958, FROM THE ACTING SECRETARY OF THE TREASURY, REGARDING THE NECESSITY FOR RECOVERY OF PAYMENTS OF SEA-DUTY PAY MADE PRIOR TO APRIL 1, 1956, TO CERTAIN MEMBERS OF THE COAST GUARD.

BY DECISION OF JULY 2, 1956, B-124474, WE HELD THAT UNDER THE PROVISIONS OF SECTION 206 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 811, 37 U.S.C. 237, AND EXECUTIVE ORDER NO. 10168, ENLISTED PERSONNEL OF THE COAST GUARD ASSIGNED TO 83- AND 95-FOOT PATROL BOATS WERE NOT ENTITLED TO SEA- DUTY PAY EXCEPT FOR PERIODS, IF ANY, OF EIGHT DAYS OR MORE OF ACTUAL OPERATION OUTSIDE OF INLAND WATERS. ALSO, WE HELD THAT PAYMENTS OF SEA- DUTY PAY WHICH HAD BEEN MADE TO THE MEMBERS CONCERNED WERE ERRONEOUS AND SHOULD BE RECOVERED. THAT DECISION WAS PREDICATED UPON A SHOWING THAT THE PRIMARY FUNCTION OF BOATS CONCERNED DID NOT REQUIRE THEM TO OPERATE FOR MORE THAN NOMINAL PERIODS OUTSIDE INLAND WATERS OF THE UNITED STATES, THAT THEY DID NOT SO OPERATE, AND, THEREFORE, THAT THEY WERE IN FACT VESSELS RESTRICTED TO INLAND WATERS WITHIN THE MEANING OF EXECUTIVE ORDER NO. 10168. IN DECISION OF NOVEMBER 5, 1956, 36 COMP. GEN. 372, WE RECONSIDERED THIS MATTER AND CONCLUDED THAT, WHILE THE PRIMARY FUNCTION OF THE BOATS CONCERNED DID NOT APPEAR TO REQUIRE THEM TO OPERATE OUTSIDE INLAND WATERS AND THE OPERATIONAL RECORD OF THE BOATS PRESENTED BASICALLY A PICTURE OF VESSELS GENERALLY RESTRICTED TO INLAND WATERS, SOME OF THE VESSELS DID IN FACT OPERATE OUTSIDE INLAND WATERS. WE CONCLUDED THAT WE COULD NOT CONSIDER A VESSEL AS UNRESTRICTED UNLESS THE DUTIES OF THE VESSEL REGULARLY KEPT IT OUTSIDE INLAND WATER BOUNDARIES AT LEAST 5 PERCENT OF THE TIME.

IN HIS LETTER OF DECEMBER 9, THE ACTING SECRETARY SAYS THAT FOLLOWING THE DECISION OF NOVEMBER 5, 1956, THE COAST GUARD DEVELOPED A TABULATION OF 83 - AND 95-FOOT VESSEL OPERATIONS FOR THE PERIOD JANUARY 1, 1955, TO DECEMBER 1, 1956, BASED ON SHIPS' LOGS AND CREW ASSIGNMENTS, TO DETERMINE PERIODS OF SERVICE WHEN MEMBERS OF THE CREWS OF THOSE VESSELS WERE ENTITLED TO SEA-DUTY PAY UNDER THE "5 PERCENT" RULE. THESE DATA WERE ACCUMULATED AT COAST GUARD HEADQUARTERS AND, IN ATTEMPTING TO ANALYZE THE DATA FOR 2 OR 3 VESSELS, IT WAS FOUND THAT IT COULD NOT BE DETERMINED FROM SHIPS' LOGS HOW OFTEN AND FOR WHAT PERIODS OF TIME EACH SHIP OPERATED OUTSIDE INLAND WATERS, BECAUSE THERE WAS THEN NO REQUIREMENT THAT A RECORD BE KEPT OF SUCH TIME.

THE ACTING SECRETARY SAYS FURTHER THAT FROM PRELIMINARY WORK INCIDENT TO TRYING TO FIND THE MOST EQUITABLE AND ECONOMIC PROCEDURE FOR ADJUSTING ACCOUNTS UNDER THE "5 PERCENT" RULE, THE FOLLOWING CONCLUSIONS HAVE BEEN REACHED:

(1) IT WILL BE IMPOSSIBLE TO ACCURATELY DETERMINE THE PERIODS OF TIME THAT THE CREWS OF ALL 82 VESSELS WERE ENTITLED TO CREDIT FOR SEA DUTY PAY, NOR WOULD IT BE REASONABLE OR EQUITABLE TO RECOVER THESE SEA DUTY PAYMENTS TO MEMBERS BECAUSE OF THE ABSENCE OF ADMINISTRATIVE RECORDS MADE AT A TIME WHEN A SHIP'S POSITION DURING AN OPERATIONAL ASSIGNMENT WAS NOT SIGNIFICANT IN RELATION TO ENTITLEMENT TO SEA PAY.

(2) IF THE DECISION IS MANDATORY TO ADJUST THE ACCOUNTS THAT ARE SUSCEPTIBLE TO PROPER AND EQUITABLE DETERMINATION OF ENTITLEMENT TO SEA- DUTY PAY FOR THE PERIOD, THE COAST GUARD WILL BE FACED WITH THE EXPENDITURE OF HUNDREDS OF MAN HOURS ON A SEEMINGLY FRUITLESS AND INEQUITABLE TASK. WE POINT OUT THAT THERE ARE MEMBERS WHO ARE ENTITLED TO SEA-DUTY PAY FOR THE PERIOD JANUARY 1, 1955, THROUGH DECEMBER 31, 1956. IT WILL BE EQUALLY IMPOSSIBLE, IN MOST CASES, TO DETERMINE THEIR ENTITLEMENT. THEREFORE, ONLY THOSE CLAIMS WHICH ARE SUPPORTED BY DOCUMENTARY EVIDENCE FROM A VESSEL'S OFFICIAL LOG WILL BE CONSIDERED.

ON THAT BASIS AND IN THE LIGHT OF OUR CONCURRENCE IN CERTAIN PROPOSED CHANGES IN EXECUTIVE ORDER NO. 10168, TO AUTHORIZE PAYMENT OF SEA-DUTY PAY TO ENLISTED MEMBERS SERVING ON VESSELS RESTRICTED TO INLAND WATERS, THE ACTING SECRETARY ASKED THAT WE AGAIN RECONSIDER THE NECESSITY FOR RECOVERY OF THE PAYMENTS OF SEA-DUTY PAY MADE PRIOR TO APRIL 1, 1956.

THE ACTING SECRETARY SEEMS TO BE OF THE OPINION THAT OUR CONCURRENCE IN THE PROPOSED CHANGES TO EXECUTIVE ORDER NO. 10168 WAS BASED ON THE FACT THAT THE MEMBERS (EXCEPT MEMBERS WITH DEPENDENTS) WOULD RECEIVE SEA-DUTY PAY UNDER THE PROPOSED CHANGES BECAUSE THEY ARE NOT ENTITLED TO SUBSISTENCE AND QUARTERS ALLOWANCES. SUCH IS NOT THE CASE. WHILE SOME EMPHASIS WAS PLACED ON THAT SITUATION, OUR CONCURRENCE WAS BASED UPON OUR UNDERSTANDING THAT SUCH CHANGES WOULD PERMIT THE PAYMENT OF SEA-DUTY PAY TO MEMBERS SERVING ON RESTRICTED VESSELS ONLY WHEN THEY WERE PERFORMING SERVICE UNDER THE GENERAL RESTRICTIONS, REGULATIONS AND REQUIREMENTS THAT ARE INCIDENT OR PECULIAR TO SERVICE ON THE HIGH SEAS. SUCH RESTRICTIONS, REGULATIONS AND REQUIREMENTS INCLUDE HAVING QUARTERS ON BOARD, BEING FORBIDDEN TO LIVE WITH ONE'S FAMILY, MESSING ON BOARD, AND WEARING OF THE UNIFORM. THE NON-ENTITLEMENT OF MEMBERS WITHOUT DEPENDENTS SERVING ON RESTRICTED VESSELS TO SUBSISTENCE AND QUARTERS ALLOWANCE IS SIMPLY EVIDENCE THAT SUCH MEMBERS HAVE QUARTERS AND ARE MESSED ABOARD THE VESSELS. WHEN AND IF EXECUTIVE ORDER NO. 10168 IS CHANGED AS PROPOSED, SUCH CHANGES WILL HAVE NO EFFECT UPON THE PAYMENTS HERE INVOLVED, IT BEING SETTLED THAT REGULATIONS MAY NOT BE AMENDED TO INCREASE OR DECREASE RETROACTIVELY THE RIGHTS OF INDIVIDUALS UNDER PRIOR REGULATIONS.

IT APPEARS APPROPRIATE TO REVIEW THE PURPOSE AND TYPE OF THE VESSELS HERE CONCERNED. BUDGET JUSTIFICATIONS SUBMITTED BY THE TREASURY DEPARTMENT FOR THE COAST GUARD ACQUISITION, CONSTRUCTION, AND IMPROVEMENTS APPROPRIATION, AND SUPPORTING WORKING PAPERS SHOW THAT 83- AND 95-FOOT PATROL BOATS ARE USED PRIMARILY FOR SEARCH AND RESCUE, LAW ENFORCEMENT, AND PORT SECURITY DUTIES. THE 83-FOOT BOATS ARE THE LAST OF A CLASS OF 230 BOATS BUILT DURING WORLD WAR II AND ACCOMMODATE CREWS OF 8 TO 12 MEN. THEY WERE INTENDED ORIGINALLY TO BE OPERATED IN GROUPS WITH CREWS BASED ASHORE. THEY ARE NOT COMPLETELY EQUIPPED FOR INDEPENDENT DUTY OR FOR EXTENDED PERIODS AWAY FROM BASE AND, WHILE ON OCCASION THEY MAY BE USED IN OFFSHORE WATERS, THEY ARE PARTICULARLY USED FOR PATROL WORK IN INSHORE AND COASTAL WATERS. ALL BUT 6 OF THE 83-FOOT BOATS ARE GASOLINE DRIVEN AND ARE LIMITED AS TO SEAWORTHINESS, SPEED, RANGE, AND ENDURANCE. THEY CAN CRUISE AT A SUSTAINED MAXIMUM SPEED OF 13 KNOTS FOR ONLY ABOUT 1 DAY AND AT A SPEED OF 8 KNOTS FOR ONLY ABOUT 2 1/2 DAYS. THEIR PROVISIONING AND FRESH WATER CAPACITY IS ABOUT 5 DAYS. THE 6 DIESEL DRIVEN 83-FOOT BOATS CAN CRUISE AT A SUSTAINED SPEED OF 12 KNOTS FOR A LITTLE MORE THAN 2 DAYS AND AT A SPEED OF 8 KNOTS FOR 7 OR 8 DAYS. THEIR PROVISIONING AND FRESH WATER CAPACITY IS ABOUT 7 DAYS. THE LARGER 95-FOOT BOATS WERE CONSTRUCTED PRIMARILY FOR PORT SECURITY DUTIES AND ACCOMMODATE CREWS OF 12 TO 15 MEN. THEY CAN CRUISE FOR ABOUT 3 1/2 DAYS AT A SUSTAINED SPEED OF 18 KNOTS AND ABOUT 9 1/2 DAYS AT A SPEED OF 9 KNOTS. THEY HAVE A PROVISIONING AND FRESH WATER CAPACITY OF APPROXIMATELY 14 DAYS.

SUCH FACTS AMPLY SUPPORT THE VIEW THAT THE PRIMARY FUNCTION OF THESE 83- AND 95-FOOT BOATS DOES NOT REQUIRE THAT THEY REGULARLY OPERATE OUTSIDE INLAND WATERS AND THAT THE OPERATIONAL CAPABILITIES OF THE BOATS GENERALLY RESTRICT THEM TO INLAND WATERS. SUCH BEING THE CASE, WE SEE NO REASONABLE BASIS FOR CONCLUDING THAT THEY ARE NOT TO BE REGARDED AS RESTRICTED TO INLAND WATERS FOR PURPOSES OF SEA-DUTY PAY, EXCEPT WHERE IT REASONABLY APPEARS THAT THEY WERE IN FACT REGULARLY KEPT OUTSIDE INLAND WATERS AT LEAST 5 PERCENT OF THE TIME. DURING THE PERIOD HERE CONCERNED, EXECUTIVE ORDER NO. 10168 PRECLUDED THE PAYMENT OF SEA-DUTY PAY TO MEMBERS SERVING ON VESSELS RESTRICTED TO INLAND WATERS, EXCEPT FOR PERIODS OF 8 DAYS OR MORE OF ACTUAL OPERATION OUTSIDE SUCH WATERS. SINCE WE HAVE NO AUTHORITY TO WAIVE THE APPLICATION OF THE REGULATIONS IN THE AUDIT OF ACCOUNTS, OR TO WAIVE OR REMIT INDEBTEDNESSES OF ENLISTED MEMBERS TO THE UNITED STATES BECAUSE OF ERRONEOUS PAYMENTS OF SEA-DUTY PAY, WE PROPERLY MAY NOT AUTHORIZE THE DISCONTINUATION OF COLLECTION PROCEEDINGS IN ANY CASE WHERE SEA DUTY PAY WAS ERRONEOUSLY PAID ON THE GROUNDS OF EQUITY AND COST OF RECOVERY.

IN SUCH CONNECTION OUR AUDIT PERSONNEL ADVISE THAT IN AN INSTRUCTION DATED MARCH 21, 1957, THE COAST GUARD DIRECTED APPLICABLE FIELD UNITS TO ASCERTAIN IF THE PRIMARY DUTIES ASSIGNED TO BOATS 83 FEET OR OVER BUT LESS THAN 125 FEET IN LENGTH DURING THE 2 YEARS ENDED DECEMBER 31, 1956, RESTRICTED THEIR SERVICES TO INLAND WATERS. SHOULD IT BE DETERMINED THAT A VESSEL WAS NOT SO RESTRICTED DURING ANY PORTION OF THIS PERIOD, THE FIELD UNITS WERE DIRECTED TO USE ANY AVAILABLE RECORDS TO COMPUTE THE NUMBER OF HOURS THE VESSEL ACTUALLY PERFORMED DUTY OUTSIDE INLAND WATERS DURING EACH CALENDAR MONTH. IT IS REPORTED THAT, WITH FEW EXCEPTIONS, THE PRESCRIBED REPORTS WERE SUBMITTED AND SUCH REPORTS EITHER CLASSIFY THE INDIVIDUAL BOATS AS "RESTRICTED" TO INLAND WATERS, OR SHOW THE NUMBER OF HOURS THE "UNRESTRICTED" BOATS OPERATED OUTSIDE INLAND WATERS EACH MONTH. WHILE SUCH INFORMATION MAY NOT BE ENTIRELY CLEAR AS TO THE SPECIFIC NUMBER OF HOURS OF DUTY INSIDE OR OUTSIDE INLAND WATERS IN THE CASE OF EVERY OPERATION OF EACH BOAT, IT WOULD SEEM THAT THOSE COAST GUARD MEMBERS HAVING A CLOSE FAMILIARITY WITH THE OPERATING AREAS AND MISSIONS OF THE BOATS COULD ARRIVE AT A REASONABLY CORRECT ESTIMATE OF SUCH HOURS IN EACH CASE. IN THE CIRCUMSTANCES, IN THOSE CASES WHERE THE ACTUAL HOURS OF OPERATION OUTSIDE INLAND WATERS MAY NOT BE DEFINITELY STATED ON THE FIELD UNIT REPORTS, WE WILL ACCEPT FOR AUDIT PURPOSES THE DETERMINATION OF THE PROPER COAST GUARD OFFICIAL IN THAT RESPECT, PROVIDED SUCH DETERMINATION IS REASONABLY SUPPORTED BY THE PERTINENT FIELD UNIT REPORT.

FURTHER AUDIT ACTION IN THESE CASES WILL BE TAKEN IN ACCORDANCE WITH THE FOREGOING.