A-45028, JANUARY 19, 1933, 12 COMP. GEN. 498

A-45028: Jan 19, 1933

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FONTAINE IS REGULARLY ASSIGNED TO U.S.S. S-31 AND HIS ACCOUNT IS BEING CREDITED EACH MONTH WITH ADDITIONAL PAY AT $20.00 PER MONTH AS QUALIFIED FOR SUBMARINE TORPEDO BOAT DUTY. 2. DECISION IS REQUESTED AS TO WHETHER CREDIT IN ABOVE CASE WITH ADDITIONAL PAY AS A DIVER. IS AUTHORIZED. S-31 WAS DIRECTED BY ORDER OF THE COMMANDING OFFICER OF THE U.S.S. UPON RECEIPT OF THESE ORDERS YOU WILL REPORT TO THE COMMANDING OFFICER. YOUR RECORDS AND ACCOUNTS WILL BE RETAINED ON BOARD THIS VESSEL. 3. YOU WILL RETURN TO THIS VESSEL AND RESUME YOUR REGULAR DUTIES. FONTAINE WAS OFFICIALLY DESIGNATED AS A DIVER. FONTAINE WAS OFFICIALLY DETAILED AND ASSIGNED TO THE DUTY OF DIVING IN ACCORDANCE WITH ENCLOSURE (C). (3) WHILE REGULARLY ATTACHED TO AND SERVING ON BOARD THE U.S.S.

A-45028, JANUARY 19, 1933, 12 COMP. GEN. 498

PAY - ADDITIONAL - DIVING AND SUBMARINE DUTY - NAVY ENLISTED MAN AN ENLISTED MAN OF THE NAVY ASSIGNED TO DUTY ABOARD A SUBMARINE AND ALSO TO THE DUTY OF DIVING MAY RECEIVE THE ADDITIONAL PAY FOR EACH ASSIGNMENT AS PROVIDED BY THE ACT OF APRIL 9, 1928, 45 STAT. 412, AND THE REGULATIONS ISSUED IN PURSUANCE THEREOF.

COMPTROLLER GENERAL MCCARL TO LIEUT. A. W. URQUHART, UNITED STATES NAVY, JANUARY 19, 1933:

THERE HAS BEEN RECEIVED, THROUGH THE SECRETARY OF THE NAVY, YOUR LETTER OF JULY 22, 1932, AS FOLLOWS:

SUBJECT: REQUEST FOR DECISION, ADDITIONAL PAY FOR DIVING DUTY, CASE OF: FONTAINE, EDWARD P., 2334846, GM2C, U.S. NAVY, U.S.S. S-31. REFERENCE: (A) ACT OF APRIL 9, 1828.

(B) BU.NAV.CIRC. LETTER 29-32, JUNE 28,

1932.

(C) BU.NAV. MANUAL ART. D 5321-3, 5322-3.

(D) DEC. OF COMP. GEN., A-29315,

NOVEMBER 13, 1929.

1. THE COMMANDING OFFICER, U.S.S. S-31, HAS DIRECTED ME TO CREDIT THE ACCOUNT OF SUBJECT NAMED MAN WITH ADDITIONAL PAY AS A DIVER, FIRST CLASS. FONTAINE IS REGULARLY ASSIGNED TO U.S.S. S-31 AND HIS ACCOUNT IS BEING CREDITED EACH MONTH WITH ADDITIONAL PAY AT $20.00 PER MONTH AS QUALIFIED FOR SUBMARINE TORPEDO BOAT DUTY.

2. DECISION IS REQUESTED AS TO WHETHER CREDIT IN ABOVE CASE WITH ADDITIONAL PAY AS A DIVER, FIRST CLASS, IS AUTHORIZED.

IT APPEARS THAT FONTAINE WHILE HOLDING THE DESIGNATION OF DIVER, FIRST- CLASS, AND ASSIGNED TO DUTY ON BOARD THE U.S.S. S-31 WAS DIRECTED BY ORDER OF THE COMMANDING OFFICER OF THE U.S.S. S-31, DATED JULY 1, 1932, AS FOLLOWS:

1. UPON RECEIPT OF THESE ORDERS YOU WILL REPORT TO THE COMMANDING OFFICER, U.S.S. WIDGEON, FOR TEMPORARY DUTY IN CONNECTION WITH DIVES TO RETAIN QUALIFICATION AS DIVER, FIRST CLASS.

2. YOUR RECORDS AND ACCOUNTS WILL BE RETAINED ON BOARD THIS VESSEL.

3. UPON COMPLETION OF THIS TEMPORARY DUTY AND WHEN DIRECTED BY THE COMMANDING OFFICER, U.S.S. WIDGEON, YOU WILL RETURN TO THIS VESSEL AND RESUME YOUR REGULAR DUTIES.

HE REPORTED AS DIRECTED AND ON JULY 1, 1932, MADE TWO DIVES OF 204 FEET EACH OF 44 AND 48 MINUTES' DURATION, RESPECTIVELY.

IN REPLY TO THE REQUEST OF THE JUDGE ADVOCATE GENERAL OF THE NAVY FOR INFORMATION, THE COMMANDER, SUBMARINE SQUADRON FOUR, SUBMARINE BASE, PEARL HARBOR, T.H., IN HIS FOURTH INDORSEMENT OF SEPTEMBER 6, 1932, STATES:

1. RETURNED WITH THE FOLLOWING INFORMATION AS REQUESTED IN THE THIRD ENDORSEMENT:

(1) ON JULY 1, 1932, FONTAINE WAS OFFICIALLY DESIGNATED AS A DIVER, FIRST CLASS, AND OTHERWISE QUALIFIED FOR DIVING DUTY.

(2) ON JULY 1, 1932, FONTAINE WAS OFFICIALLY DETAILED AND ASSIGNED TO THE DUTY OF DIVING IN ACCORDANCE WITH ENCLOSURE (C).

(3) WHILE REGULARLY ATTACHED TO AND SERVING ON BOARD THE U.S.S. S 31, HE ACTUALLY PERFORMED TWO DIVES OF OVER 120 FEET EACH. THESE DIVES WERE PERFORMED AS A MEMBER OF THE SQUADRON DIVING PARTY OPERATING FROM THE SQUADRON SALVAGE VESSEL, THE U.S.S. WIDGEON, AS STATED IN ENCLOSURE (D). THESE DIVES WERE MADE WHILE REGULARLY DESIGNATED FOR DIVING DUTY AND WHILE HE WAS OFFICIALLY DETAILED AND ASSIGNED TO THE DUTY OF DIVING.

IN HIS SECOND INDORSEMENT OF AUGUST 8, 1932, THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS REMARKS:

IT IS NOTED THAT EDWARD P. FONTAINE, GM2C, U.S. NAVY, IS NOW BEING CREDITED ADDITIONAL PAY AT THE RATE OF $20 PER MONTH AS QUALIFIED FOR SUBMARINE TORPEDO BOAT DUTY. IF THIS MAN IS CREDITED WITH ADDITIONAL PAY AS DIVER, FIRST CLASS, AT THE RATE OF $15 PER MONTH AND ALSO WITH AN ADDITIONAL $10 FOR THE MONTH OF JULY FOR THE TWO DIVES OF OVER 120 FEET, THE TOTAL AMOUNT PAID TO HIM FOR DIVING AND SUBMARINE DUTY WOULD AMOUNT TO $45. THIS AMOUNT WOULD EXCEED BY $15 THE MAXIMUM AMOUNT AUTHORIZED IN ANY ONE MONTH BY THE ACT OF APRIL 9, 1928.

THE ACT OF APRIL 9, 1928, 45 STAT. 412, SO FAR AS HERE MATERIAL, PROVIDES:

* * * AND AN ENLISTED MAN OF THE UNITED STATES NAVY ASSIGNED TO DUTY ABOARD A SUBMARINE OF THE NAVY, 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 REGULATIONS ISSUED IN PURSUANCE OF THE ABOVE ACT ARE CONTAINED IN ARTICLES D-5321 (3) AND (4) AND D-5322, BUREAU OF NAVIGATION MANUAL.

ARTICLE D-5322 DIVIDES QUALIFIED DIVERS INTO THREE CLASSES, (A) MASTER DIVERS, (B) DIVERS, FIRST CLASS, AND (C) DIVERS, SECOND CLASS, AND PRESCRIBES RULES FOR THE QUALIFICATION, DESIGNATION, AND REQUALIFICATION OF EACH CLASS.

ARTICLE D-5321 (3) PRESCRIBES RATES OF ADDITIONAL PAY ACCORDING TO THE DESIGNATION IN ONE OF THE THREE CLASSES, AND THE SAME ARTICLE, SUBPARAGRAPH 4, PRESCRIBES THE RATES OF ADDITIONAL PAY FOR MEN ASSIGNED TO DUTY ABOARD SUBMARINES, THE ADDITIONAL PAY PRESCRIBED FOR DIVERS, FIRST CLASS, SO FAR AS HERE MATERIAL BEING AS FOLLOWS:

(B) DIVERS, FIRST CLASS, $15 PER MONTH AS LONG AS DESIGNATED AS SUCH; PLUS 5 CENTS PER FOOT OF TOTAL DEPTH FOR DIVES OVER 120 FEET, BUT NOT TO EXCEED $10 PER MONTH; * * *.

BUREAU OF NAVIGATION CIRCULAR LETTER NO. 29-32, JUNE 28, 1932, TO WHICH YOU REFER, STATES:

SUBJECT: NUMBERS OF MASTER DIVERS, DIVERS 1C, AND DIVERS 2C, AUTHORIZED FOR FISCAL YEAR 1933.

REFERENCES: (A) BU.NAV. MANUAL, ARTICLE D-5322.

(B) BU.NAV. MANUAL, ARTICLE D-5321 (D).

(C) BU.NAV.CIR.LET.NO. 50-31 (CORRECTED).

1. REFERENCE (C) WILL BE CONSIDERED CANCELED AS OF JUNE 30, 1932.

2. IN ACCORDANCE WITH REFERENCE (A), SUBPARAGRAPH (4), THE NUMBERS OF MASTER DIVERS, DIVERS 1C, AND DIVERS 2C, AUTHORIZED FOR THE FISCAL YEAR 1933 ARE AS FOLLOWS:

THEN FOLLOWS THE NUMBER OF DIVERS OF THE DIFFERENT CLASSES AUTHORIZED FOR CERTAIN VESSELS AND STATIONS, NONE BEING AUTHORIZED FOR THE U.S.S. S-31. IT IS THEN STATED:

3. THIS LETTER IS ISSUED IN ACCORDANCE WITH REFERENCE (A), SUBPARAGRAPH 4, WHICH ONLY APPLIES TO DIVERS 2C. THE ALLOWANCES OF MASTER DIVERS, AND DIVERS 1C, ARE INSERTED HEREIN FOR INFORMATION AND CONVENIENCE OF OFFICERS ORDERING MEN TO SHIPS AND STATIONS. MASTER DIVERS AND DIVERS 1C ARE NOT RESTRICTED IN RECEIVING THEIR ADDITIONAL PAY BY THE ABOVE AUTHORIZATIONS.

THE CIRCULAR LETTER IN ITS APPLICATION TO THE NUMBER OF DIVERS AUTHORIZED FOR THE SHIPS AND STATIONS THEREIN MENTIONED APPEARS TO APPLY PRIMARILY TO DIVERS, SECOND CLASS, AND IT IS EXPRESSLY PROVIDED THEREIN THAT "MASTER DIVERS AND DIVERS 1C ARE NOT RESTRICTED IN RECEIVING THEIR ADDITIONAL PAY BY THE ABOVE AUTHORIZATIONS.' THIS IS UNDERSTOOD TO MEAN THAT A MASTER DIVER OR DIVER, FIRST CLASS, MAY BE ASSIGNED TO THE DUTY OF DIVING ON BOARD A SHIP OR STATION AND BE ENTITLED TO THE ADDITIONAL PAY PRESCRIBED FOR SUCH ASSIGNMENT, ALTHOUGH THERE IS NO AUTHORIZATION IN THE CIRCULAR LETTER FOR SUCH DIVERS FOR THE PARTICULAR SHIP OR STATION.

PRIOR TO THE ABOVE ACT OF APRIL 9, 1928, ENLISTED MEN OF THE NAVY WERE GRANTED $5 PER MONTH IN ADDITION TO THEIR PAY FOR SERVING ON SUBMARINE VESSELS, BY EXECUTIVE ORDER OF JANUARY 1, 1901, PARAGRAPH 2; AND THOSE QUALIFIED FOR SUBMARINE TORPEDO-BOAT WORK WERE GRANTED $1 ADDITIONAL THERETO FOR EACH DAY DURING ANY PART OF WHICH THEY SHALL HAVE BEEN SUBMERGED, SUCH FURTHER ADDITIONAL PAY NOT TO EXCEED $15 IN ANY ONE MONTH, BY EXECUTIVE ORDER OF NOVEMBER 8, 1905. SEE L.R.N.A., PP. 855 AND 861; SUPPLEMENT TO L.R.N.A., P. 773.

EXTRA PAY FOR SUBMARINE DIVING WAS AUTHORIZED BY NAVY DEPARTMENT GENERAL ORDER NO. 346 OF APRIL 20, 1886 (L.R.N.A., P. 853), AND ARTICLE 1229, NAVY REGULATIONS, 1893, AS AMENDED BY U.S. NAVY REGULATIONS CIRCULAR NO. 12 OF JULY 18, 1894, TO READ AS FOLLOWS: "ENLISTED MEN OF THE NAVY, NOT UNDER INSTRUCTION OR DIVING FOR PRACTICE, SHALL, WHEN EMPLOYED IN SUBMARINE DIVING, RECEIVE EXTRA COMPENSATION THEREFOR, TO BE CHARGED TO THE BUREAU FOR WHICH THE SERVICE IS PERFORMED, AT THE RATE OF ONE DOLLAR AND TWENTY CENTS PER HOUR FOR THE ACTUAL TIME SO EMPLOYED UNDER WATER.' SEE ALSO ARTICLE 4427 (33), NAVY REGULATIONS, 1913.

SECTION 21, ACT OF JUNE 10, 1922, 42 STAT. 633, PROVIDES THAT NOTHING IN THIS ACT SHALL OPERATE TO CHANGE IN ANY WAY EXISTING LAWS, OR REGULATIONS MADE IN PURSUANCE OF LAW GOVERNING EXTRA PAY TO ENLISTED MEN ENGAGED IN SUBMARINE DIVING OR SERVICE ON SUBMARINES. THE ADDITIONAL PAY PROVIDED BY THE ABOVE REGULATIONS WAS FOR A SPECIAL DUTY. SUBMARINE DUTY AND DIVING DUTY ARE SEPARATE AND DISTINCT DUTIES AND ADDITIONAL PAY WAS PRESCRIBED FOR EACH.

THE ABOVE REGULATIONS IN FORCE PRIOR TO THE ACT OF APRIL 9, 1928, WERE SUPERSEDED BY THAT ACT, WHICH PROVIDED THAT AN ENLISTED MAN ASSIGNED TO DUTY ABOARD A SUBMARINE, OR TO THE DUTY OF DIVING, SHALL, IN LIEU OF THE ADDITIONAL PAY NOW AUTHORIZED, RECEIVE ADDITIONAL 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. THAT IS TO SAY, THE ADDITIONAL PAY SO PRESCRIBED IS APPLICABLE TO AN ENLISTED MAN ASSIGNED TO DUTY ABOARD A SUBMARINE, AND IS ALSO APPLICABLE TO AN ENLISTED MAN ASSIGNED TO THE DUTY OF DIVING. AS THESE TWO CLASSES OF SPECIAL DUTY ARE SEPARATE AND DISTINCT, AND AS ADDITIONAL PAY IS PROVIDED FOR THE ASSIGNMENT TO EACH OF THE TWO SPECIAL DUTIES, IT FOLLOWS THAT IF A MAN IS ASSIGNED TO DUTY ABOARD A SUBMARINE AND ALSO TO DIVING DUTY HE IS ENTITLED TO RECEIVE THE PAY PROVIDED FOR EACH ASSIGNMENT.

FONTAINE MAY, THEREFORE, RECEIVE THE ADDITIONAL PAY AS PRESCRIBED IN THE REGULATIONS UNDER HIS ASSIGNMENT TO DIVING DUTY IN ADDITION TO THE ADDITIONAL PAY TO WHICH ENTITLED UNDER HIS ASSIGNMENT TO DUTY ABOARD A SUBMARINE.