B-111704, DECEMBER 2, 1959, 39 COMP. GEN. 412

B-111704, DECEMBER 2, 1959, 39 COMP. GEN. 412

MILITARY PERSONNEL - INCENTIVE PAY - SUBMARINE DUTY - LEAVES OF ABSENCE TIME LIMITATION THE ESTABLISHMENT OF A 30-DAY LIMIT FOR PAYMENT OF INCENTIVE PAY DURING AUTHORIZED LEAVES OF ABSENCE FROM SUBMARINE DUTY WOULD NOT BE UNREASONABLE IN VIEW OF THE PROLONGED PATROL MISSIONS NOR INCONSISTENT WITH SECTION 11 OF EXECUTIVE ORDER NO. 10152, WHICH AUTHORIZES INCENTIVE PAY TO QUALIFIED MEMBERS OF THE UNIFORMED SERVICES DURING LEAVES OF ABSENCE, AND UPON THE PROMULGATION OF A REGULATION PROVIDING A 30-DAY LIMIT, THE 15-DAY LIMIT FOR INCENTIVE PAY DURING LEAVES OF ABSENCE WOULD NO LONGER BE FOR APPLICATION. 32 COMP. GEN. 287, MODIFIED.

TO THE SECRETARY OF THE NAVY, DECEMBER 2, 1959:

REFERENCE IS MADE TO LETTER DATED SEPTEMBER 8, 1959, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES), REQUESTING A DECISION (ASSIGNED SUBMISSION NO. SS-N-453 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE) AS TO THE PROPRIETY OF ISSUING REGULATIONS WHICH WOULD AUTHORIZE THE PAYMENT OF INCENTIVE PAY FOR SUBMARINE DUTY TO MEMBERS OTHERWISE ENTITLED DURING AUTHORIZED LEAVES OF ABSENCE NOT IN EXCESS OF 30 DAYS.

THE LETTER STATES THAT RADICAL CHANGES IN THE OPERATIONS OF SUBMARINES HAVE PROMPTED A REVIEW OF REGULATIONS AFFECTING PAYMENT OF INCENTIVE PAY FOR DUTY ON BOARD A SUBMARINE. THE LETTER ALSO REFERS TO OUR DECISION OF DECEMBER 17, 1952 (32 COMP. GEN. 287), HOLDING, IN SUBSTANCE, THAT MEMBERS OF THE UNIFORMED SERVICES WHO ARE ATTACHED TO SUBMARINES ARE NOT ENTITLED TO INCENTIVE PAY FOR THE PERFORMANCE OF SUBMARINE DUTY FOR ANY PERIOD OF ABSENCE OF 16 DAYS OR MORE FROM THE SUBMARINE, WHETHER ON TEMPORARY ADDITIONAL DUTY, LEAVE, OR OTHERWISE.

IT IS STATED THAT WITH THE ADVENT OF NUCLEAR SUBMARINES, THE TIME WHICH A SUBMARINE CAN PATROL SUBMERGED AND REMAIN ON STATION HAS INCREASED TREMENDOUSLY. IT IS ALSO STATED THAT THE EXACTING TECHNICAL REQUIREMENTS OF NUCLEAR SUBMARINE DUTY, COUPLED WITH THE CRAMPED CONFINEMENT SUBSTANTIALLY DIVORCED FROM THE REST OF THE WORLD FOR LONG PERIODS, DEMAND THAT THE SUBMARINES ASSIGNED SUCH DUTY BE AFFORDED THE MAXIMUM OPPORTUNITY FOR EXTENDED PERIODS OF LEAVE AS PROVIDED UNDER THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, 37 U.S.C. 33. THE LETTER SAYS THAT THE PROPOSED REGULATION WOULD PROVIDE:

THAT MEMBERS WHO, PURSUANT TO COMPETENT ORDERS, ARE ATTACHED TO A SUBMARINE AND ARE OTHERWISE ENTITLED, WOULD BE ENTITLED TO RECEIVE INCENTIVE PAY FOR SUBMARINE DUTY DURING AUTHORIZED LEAVE OF ABSENCES NOT IN EXCESS OF THIRTY DAYS.

AUTHORITY FOR THIS ENTITLEMENT, IT IS STATED, IS BASED ON THE PROVISIONS OF SECTION 11 OF EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950.

SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 235, PROVIDES THAT, SUBJECT TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT, MEMBERS ENTITLED TO RECEIVE BASIC PAY SHALL, IN ADDITION THERETO, BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY OF THE TYPES SPECIFIED, WHEN REQUIRED BY COMPETENT ORDERS, INCLUDING:

(2) DUTY ON BOARD A SUBMARINE, INCLUDING SUBMARINES UNDER CONSTRUCTION FROM THE TIME BUILDERS' TRIALS COMMENCE; * * *

THE PERTINENT PROVISIONS OF EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950, ISSUED PURSUANT TO THE AUTHORITY OF SECTION 204 ARE AS FOLLOWS:

SEC. 6. MEMBERS WHO, PURSUANT TO COMPETENT ORDERS, ARE ATTACHED TO A SUBMARINE WHICH IS IN AN ACTIVE STATUS, INCLUDING A SUBMARINE UNDER CONSTRUCTION FROM THE TIME BUILDERS' TRIALS COMMENCE, SHALL BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF SUBMARINE DUTY. THE TERM ,BUILDERS' TRIALS" SHALL BE CONSTRUED TO MEAN TRIALS CONDUCTED UNDERWAY OR IN FREE ROUTE.

SEC. 11. MEMBERS REQUIRED BY COMPONENT ORDERS TO PERFORM HAZARDOUS DUTY SHALL, UPON COMPLIANCE WITH THE REQUIREMENTS OF THESE REGULATIONS, BE ENTITLED TO RECEIVE INCENTIVE PAY DURING AUTHORIZED LEAVES OF ABSENCE.

SEC. 12. THE SECRETARIES CONCERNED ARE HEREBY AUTHORIZED TO PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS NOT INCONSISTENT HEREWITH AS THEY MAY DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT THESE REGULATIONS, AND SUCH SUPPLEMENTARY REGULATIONS SHALL BE UNIFORM FOR ALL THE SERVICES TO THE FULLEST EXTENT PRACTICABLE.

ALTHOUGH THE ASSISTANT SECRETARY'S LETTER MAKES NO REFERENCE TO THE CURRENT SUPPLEMENTARY REGULATIONS RELATIVE TO INCENTIVE PAY FOR SUBMARINE DUTY WHICH THE PROPOSED REGULATIONS WOULD AMEND, PRESUMABLY SUCH REGULATIONS--- ISSUED UNDER AUTHORITY OF SECTION 12 OF EXECUTIVE ORDER NO. 10152--- ARE THOSE CONTAINED IN PARAGRAPH 1044100-2, NAVY COMPTROLLER MANUAL, WHICH PROVIDES AS FOLLOWS:

2. ABSENCE FROM SUBMARINE. MEMBERS WILL BE ENTITLED TO AN OTHERWISE PROPER CREDIT OF SUBMARINE PAY FOR ANY PERIOD OF ABSENCE AWAY FROM THE SUBMARINE, INCLUDING PERIODS OF TEMPORARY ADDITIONAL DUTY OR LEAVE, IF NOT DETACHED FROM THE SUBMARINE AND PROVIDED THAT THE PERIOD OF ABSENCE IS 15 DAYS OR LESS. HOWEVER, A MEMBER WHO COMPLETES A PERIOD OF TEMPORARY ADDITIONAL DUTY, RETURNS TO HIS PERMANENT DUTY STATION, AND WITHIN 15 DAYS DEPARTS ON NEW ORDERS FOR A CONTINUATION OF THE SAME TEMPORARY ADDITIONAL DUTY IS NOT ENTITLED TO SUBMARINE PAY FOR ANY PART OF THE LATTER PERIOD OF TEMPORARY ADDITIONAL DUTY. IN THE SAME MANNER, A MEMBER WHO RETURNS FROM ONE PERIOD OF LEAVE AND DEPARTS ON LEAVE AGAIN WITHIN 15 DAYS IS NOT ENTITLED TO SUBMARINE PAY FOR ANY PART OF THE LATTER PERIOD OF LEAVE. SUBMARINE PAY WILL BE CREDITED FOR ANY PORTION OF A PERIOD OF ABSENCE IF THE ABSENCE IS IN EXCESS OF 15 DAYS. IF A MEMBER IS DETACHED FROM THE SUBMARINE DURING THE 15 DAY PERIOD, SUCH PAY WILL TERMINATE WITH THE DATE OF DETACHMENT. MEMBERS ATTACHED TO DIVISION, SQUADRON, FLOTILLA, AND FORCE SUBMARINE STAFFS ORDERED TO TEMPORARY ADDITIONAL DUTY INVOLVING SUBMARINE MATTERS ARE ENTITLED TO CONTINUE IN RECEIPT OF SUBMARINE PAY IF NOT ABSENT FROM A SUBMARINE FOR A PERIOD IN EXCESS OF 15 DAYS.

IN DETERMINING THE LEGALITY OF PAYMENT OF INCENTIVE PAY FOR SUBMARINE DUTY DURING PERIODS OF ABSENCE FROM THE SUBMARINE TO WHICH THE MEMBER IS ATTACHED, WHETHER ON TEMPORARY ADDITIONAL DUTY, LEAVE, OR OTHERWISE, WE ADOPTED, IN THE ABOVE-MENTIONED DECISION OF DECEMBER 17, 1952, 32 COMP. GEN. 287, THE 15-DAY LIMIT FIXED IN SECTION 2 OF EXECUTIVE ORDER NO. 10168, OCTOBER 11, 1950--- THAT EXECUTIVE ORDER WAS AMENDED BY EXECUTIVE ORDER NO. 10821, MAY 20, 1959, AND RESTATES THE 15 DAY LIMIT--- RELATING TO SEA DUTY PAY WHILE ON TEMPORARY ADDITIONAL DUTY ASHORE, AS A REASONABLE LIMIT ON ABSENCES FROM THE SUBMARINE IN CONNECTION WITH SUBMARINE PAY. SAID THAT WE WOULD NOT BE JUSTIFIED IN RECOGNIZING A RIGHT TO SUBMARINE PAY FOR ANY PART OF AN ABSENCE OF A LONGER DURATION. THE ABOVE DECISION AROSE PRIMARILY AS A RESULT OF CREDITS OF SUBMARINE PAY TO MEMBERS FOR PERIODS OF "TEMPORARY ADDITIONAL DUTY" NOT TO EXCEED 20 WEEKS AS THEN PROVIDED IN PARAGRAPH 54100, BUREAU OF SUPPLIES AND ACCOUNTS MANUAL.

WHILE THE PROVISIONS OF SECTION 11 OF EXECUTIVE ORDER NO. 10152 AUTHORIZE INCENTIVE PAY TO QUALIFIED MEMBERS DURING LEAVES OF ABSENCE, NO TIME LIMIT IS SPECIFIED DURING WHICH THE MEMBERS WOULD CONTINUE TO ACCRUE CREDITS FOR SUCH PAY WHILE ON LEAVE. SINCE THE PURPOSE OF THE PROPOSED REGULATION IS TO PROVIDE SUBMARINERS WITH A GREATER OPPORTUNITY FOR EXTENDED PERIODS OF LEAVE FOLLOWING PROLONGED PATROL MISSIONS, IT IS OUR VIEW THAT CREDITS OF INCENTIVE PAY FOR SUBMARINE DUTY TO MEMBERS WHILE ON AUTHORIZED LEAVES OF ABSENCE NOT TO EXCEED 30 DAYS WOULD NOT BE UNREASONABLE NOR INCONSISTENT WITH THE PROVISIONS OF SECTION 11 OF THE ABOVE EXECUTIVE ORDER AND THE STATUTORY PROVISIONS UNDER WHICH IT WAS ISSUED.

ACCORDINGLY WE PERCEIVE NO OBJECTION TO THE PROPOSED REGULATIONS, AND IF SUCH REGULATIONS ARE DULY PROMULGATED THE 15-DAY LIMIT ON INCENTIVE PAY DURING LEAVES OF ABSENCE FROM A SUBMARINE ADOPTED IN 32 COMP. GEN. 287 WOULD NO LONGER BE FOR APPLICATION WITH RESPECT TO LEAVE GRANTED UNDER SUCH REGULATIONS.