B-100165, MAR 22, 1951

B-100165, MAR 22, 1951

PRECIS-UNAVAILABLE

THE SECRETARY OF DEFENSE:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 12, 1950, WITH ENCLOSURE, WHEREIN YOU REQUEST DECISION AS FOLLOWS:

"WHETHER THE ADMINISTRATIVE REGULATIONS ISSUED PURSUANT TO SECTION 8 OF EXECUTIVE ORDER NO. 10168, DATED OCTOBER 11, 1950 (15 FED. REG. 6877) WOULD BE IN CONSONANCE WITH THE PERTINENT PROVISIONS OF LAW AND EXECUTIVE REGULATIONS SHOULD THEY PROVIDE FOR THE PAYMENT OF SEA DUTY PAY AND FOREIGN DUTY PAY TO ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHILE ON LEAVE NOT IN EXCESS OF THE STATUTORY LEAVE LIMIT OR WHILE BEING HOSPITALIZED WITHIN THE CONTINENTAL UNITED STATES WHERE SUCH MEMBERS REMAINED UNDER ORDERS TO RETURN TO THEIR DUTY STATIONS ON SEA OR ON FOREIGN DUTY AT THE EXPIRATION OF SUCH LEAVE OR UPON DISCHARGE FROM HOSPITALIZATION."

SECTION 206 OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 811, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, ENLISTED PERSONS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL, IN ADDITION THERETO, WHILE ON SEA DUTY OR WHILE ON DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA, BE ENTITLED TO RECEIVE PAY AT THE FOLLOWING MONTHLY RATES:"

THE PRESIDENT'S REGULATIONS ARE CONTAINED IN EXECUTIVE ORDER 10168, DATED OCTOBER 11, 1950, SECTION 8 OF WHICH PROVIDES AS FOLLOWS:

"THE SECRETARIES CONCERNED (WITHIN THE MEANING OF SECTION 102(F) OF THE SAID CAREER COMPENSATION ACT OF 1949), WITH RESPECT TO PERSONNEL OF THE UNIFORMED SERVICES WITHIN THEIR RESPECTIVE DEPARTMENTS, 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."

UNDER THE PROVISIONS OF SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 360, AS AMENDED, AUTHORIZING ADDITIONAL PAY FOR MILITARY AND NAVAL PERSONNEL ON SEA DUTY OR ON DUTY AT ANY PLACE BEYOND THE CONTINENTAL UNITED STATES OR IN ALASKA, THE HEAD OF THE DEPARTMENT CONCERNED WAS AUTHORIZED TO DEFINE THE TERM "SEA DUTY" AND IT WAS WITHIN HIS DISCRETION TO INCLUDE WITHIN THE MEANING OF SUCH TERM PERIODS WHILE PERSONNEL, WHO OTHERWISE WERE ON SEA DUTY, WERE IN THE UNITED STATES FOR THE PURPOSE OF LEAVE. DECISION OF JUNE 23, 1943, 22 COMP. GEN. 1123. HOWEVER, THE SAME WAS NOT TRUE WITH RESPECT TO DUTY OUTSIDE THE UNITED STATES AND IN THE SAID DECISION OF JUNE 23, 1943, IT WAS HELD THAT MILITARY AND NAVAL PERSONNEL WHO OTHERWISE WERE ENTITLED TO THE ADDITIONAL PAY FOR DUTY OUTSIDE THE UNITED STATES WERE NOT ENTITLED TO SUCH ADDITIONAL PAY DURING PERIODS THEY WERE ON LEAVE OR SICK IN THE HOSPITAL IN THE UNITED STATES.

THERE IS NOTHING IN THE SAID EXECUTIVE ORDER 10168 WHICH WOULD AUTHORIZE THE PAYMENT OF SEA OR FOREIGN DUTY PAY UNDER THE CIRCUMSTANCES SET FORTH IN YOUR QUESTION AND THE HEAD OF THE DEPARTMENT CONCERNED NO LONGER HAS ANY STATUTORY AUTHORITY TO DEFINE THE TERM "SEA DUTY" NOR HAS HE BEEN GIVEN ANY SUCH AUTHORITY TO DEFINE THE TERM "DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA." HENCE, IT WOULD NOT BE COMPETENT FOR HIM TO AUTHORIZE, BY REGULATION, THE PAYMENT OF THE ADDITIONAL PAY AUTHORIZED FOR SEA OR FOREIGN DUTY TO PERSONNEL, OTHERWISE ENTITLED THERETO, WHILE ON LEAVE OR HOSPITALIZED WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES, EVEN THOUGH SUCH PERSONNEL REMAINED UNDER ORDERS TO RETURN TO THEIR DUTY STATIONS ON SEA OR FOREIGN DUTY AT THE EXPIRATION OF SUCH LEAVE OR UPON DISCHARGE FROM HOSPITALIZATION. IN THAT CONNECTION IT HAS BEEN NOTED THAT SECTION 4(B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, PROVIDES IN PART AS FOLLOWS:

"AFTER AUGUST 31, 1946, MEMBERS OF THE ARMED FORCES WHEN ABSENT ON ACCOUNT OF SICKNESS OR WOUNDS *** SHALL RECEIVE THE SAME PAY AND ALLOWANCES THEY WOULD RECEIVE IF NOT SO ABSENT; WHEN ABSENT WITH LEAVE FOR OTHER CAUSES, MEMBERS SHALL BE ENTITLED DURING SUCH ABSENCES NOT EXCEEDING THE AGGREGATE NUMBER OF DAYS' LEAVE AUTHORIZED BY THIS ACT TO THE SAME PAY AND ALLOWANCES THEY WOULD RECEIVE IF NOT ON LEAVE ***."

WHILE THE ABOVE-QUOTED STATUTORY PROVISIONS AUTHORIZE PERSONNEL ABSENT ON ACCOUNT OF SICKNESS OR WOUNDS OR ABSENT WITH LEAVE TO RECEIVE THE SAME PAY AND ALLOWANCES THEY WOULD RECEIVE IF NOT SO ABSENT, IT WOULD NOT APPEAR THAT SUCH PROVISIONS GIVE THE PERSONNEL AFFECTED THEREBY ANY GREATER RIGHTS, INSOFAR AS THE RIGHT TO CONTINUE TO RECEIVE PAY ALLOWANCES WHILE ABSENT ON ACCOUNT OF SICKNESS OR WOUNDS OR ABSENT ON LEAVE IS CONCERNED, THAN THEY HAD UNDER THE PREVIOUS SYSTEM OF GRANTING LEAVE. THIS IS TO SAY, SUCH PROVISIONS DO NOT CHANGE THE RULE IN EFFECT PREVIOUS TO THE ENACTMENT OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, SUPRA, THAT PERSONNEL WHO WERE ABSENT ON ACCOUNT OF SICKNESS OR WOUNDS OR ABSENT ON LEAVE GENERALLY WERE ENTITLED TO THE SAME PAY AND ALLOWANCES THEY WOULD HAVE BEEN ENTITLED TO RECEIVE IF NOT SO ABSENT. HOWEVER, SUCH RULE DID NOT OPERATE TO PERMIT THEM TO CONTINUE TO RECEIVE ANY SPECIAL PAY OR ALLOWANCE WHICH WAS CONTINGENT UPON THEIR MEETING SOME SPECIAL QUALIFICATION UNLESS SUCH QUALIFICATION ACTUALLY WAS MET. THUS, WHERE THE LAW AUTHORIZED ADDITIONAL PAY FOR PERSONNEL ON DUTY BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA IT WAS HELD THAT THE RIGHT TO SUCH ADDITIONAL PAY WAS SUSPENDED DURING A PERIOD WHEN PERSONNEL, OTHERWISE ENTITLED THERETO, WERE HOSPITALIZED OR ON LEAVE WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES. 22 COMP. GEN. 1123, SUPRA. IN OTHER WORDS, THE VIEW WAS TAKEN THAT WHEN A MEMBER OF THE ARMED FORCES WAS HOSPITALIZED OR ON LEAVE "WITHIN" THE CONTINENTAL LIMITS OF THE UNITED STATES HE COULD NOT, DURING SUCH PERIOD, BE CONSIDERED AS BEING ON DUTY "OUTSIDE" THE CONTINENTAL LIMITS OF THE UNITED STATES. IN THE ABSENCE OF SOME EXPRESS STATUTORY PROVISION TO THE CONTRARY, NO REASON IS PERCEIVED WHY A DIFFERENT RULE SHOULD NOW BE APPLIED. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.