B-114323, JUNE 13, 1955, 34 COMP. GEN. 666

B-114323, JUNE 13, 1955, 34 COMP. GEN. 666

PAY - ADDITIONAL - SEA AND FOREIGN DUTY PAY - NAVAL VESSELS ON GREAT LAKES SEA DUTY PAY AUTHORIZED BY SECTION 206 OF THE CAREER COMPENSATION ACT OF 1949 AND EXECUTIVE ORDER NO. 10168 FOR DUTY ON VESSELS, OTHER THAN THOSE RESTRICTED TO SERVICE IN THE INLAND WATERS OF THE UNITED STATES, MAY NOT BE PAID TO ENLISTED PERSONNEL SERVING ON NAVAL VESSELS OPERATING OR LOCATED ON THE GREAT LAKES, EXCEPT WHERE SUCH VESSELS ACTUALLY OPERATE OUTSIDE THE INLAND WATERS FOR A PERIOD OF EIGHT DAYS OR MORE.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE NAVY, JUNE 13, 1955:

REFERENCE IS MADE TO LETTER OF MARCH 17, 1955, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES) CONCERNING EXCEPTIONS TAKEN BY OUR NAVY AUDIT BRANCH, CLEVELAND, OHIO, TO CREDITS OF SEA DUTY PAY TO ENLISTED MEMBERS OF THE NAVY SERVING ON BOARD VESSELS OPERATING ON THE GREAT LAKES. THE EXCEPTIONS WERE TAKEN PRIMARILY FOR THE REASON THAT, IN THE ABSENCE OF AFFIRMATIVE EVIDENCE SHOWING THAT THE VESSELS IN QUESTION WERE ACTUALLY OPERATING OUTSIDE OF INLAND WATERS FOR A PERIOD OF EIGHT DAYS OR MORE, IT WAS ASSUMED THAT THE VESSELS WERE OPERATING ON THE GREAT LAKES EXCLUSIVELY AND, HENCE, WERE RESTRICTED TO SERVICE IN THE INLAND WATERS OF THE UNITED STATES. THE ASSISTANT SECRETARY REQUESTS THAT CONSIDERATION BE GIVEN TO "ALLOWING THE PAYMENT OF SPECIAL PAY FOR SEA DUTY IN THE CASE OF THOSE PERSONNEL SERVING ON VESSELS IN THE GREAT LAKES FROM 1 NOVEMBER 1950 THROUGH 31 OCTOBER 1953, TO STAND.'

THE LETTER RELATES THAT THE CHIEF OF NAVAL PERSONNEL ON FEBRUARY 2, 1951,"DETERMINED," AND SO ADVISED THE COMMANDANT, NINTH NAVAL DISTRICT, THAT PERSONNEL ASSIGNED TO VESSELS OPERATING ON THE GREAT LAKES WERE ENTITLED TO SPECIAL PAY FOR SEA DUTY, SINCE SUCH VESSELS "WERE NOT CONSIDERED" AS COMING UNDER THE CATEGORY OF VESSELS RESTRICTED TO INLAND WATERS OF THE UNITED STATES BECAUSE OF THE HIGH STATE OF MATERIAL AND COMBAT READINESS IN WHICH THE VESSELS WERE MAINTAINED AND THEIR POTENTIAL DEPLOYMENT UPON THE HIGH SEAS. SPECIAL PAY FOR SEA DUTY WAS ALSO PURPORTEDLY AUTHORIZED FOR ENLISTED MEMBERS BASED OR STATIONED ASHORE WHILE SERVING ON BOARD SUCH VESSELS FOR PERIODS OF EIGHT DAYS OR MORE, AS PROVIDED BY PARAGRAPH 3B (3C) OF ALNAV 119-50. IT IS FURTHER STATED THAT ON ADVICE OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, THE CHIEF OF NAVAL OPERATIONS ON SEPTEMBER 28, 1953, AT THE REQUEST OF THE CHIEF OF NAVAL PERSONNEL, ADVISED THAT THE U.S.S. DANIEL A. JOY WAS NOT RESTRICTED TO SERVICE WITHIN THE INLAND WATERS OF THE UNITED STATES. SHORTLY, THEREAFTER, THE CHIEF OF NAVAL PERSONNEL REQUESTED A REVIEW OF THE STATUS OF THAT VESSEL AND SEVEN OTHER VESSELS OPERATING ON THE GREAT LAKES AND IT WAS "DETERMINED" THAT AS OF NOVEMBER 1, 1953, THE NAVAL RESERVE TRAINING VESSELS, INCLUDING THE U.S.S. DANIEL A. JOY, WHICH OPERATED EXCLUSIVELY IN THE GREAT LAKES, WERE IN FACT RESTRICTED TO SERVICE IN THE INLAND WATERS OF THE UNITED STATES. AS A RESULT OF THAT ACTION, AUTHORIZATION FOR ENLISTED MEMBERS TO DRAW SEA PAY WAS ADMINISTRATIVELY DISCONTINUED EFFECTIVE NOVEMBER 1, 1953.

IT IS POINTED OUT IN THE LETTER THAT ENLISTED PERSONNEL ARE BEING REQUESTED TO MAKE REPAYMENT OF SUCH PAY RECEIVED PRIOR TO NOVEMBER 1, 1953. SUCH ACTION, IT IS STATED, CREATES A FINANCIAL HARDSHIP ON INDIVIDUALS, BOTH IN AND OUT OF THE SERVICE, WHO CANNOT UNDERSTAND THE REASON FOR REFUNDING TO THE GOVERNMENT MONEY RECEIVED IN GOOD FAITH. IS ALSO POINTED OUT THAT SUCH COLLECTION ACTION WILL HAVE AN ADVERSE EFFECT ON NAVY PUBLIC RELATIONS AND THE RECRUITING PROGRAMS.

ADDITIONAL PAY FOR SEA DUTY IS AUTHORIZED BY SECTION 206 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 811, WHICH PROVIDES:

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: * * *

EXECUTIVE ORDER NO. 10168, OCTOBER 11, 1950, WAS ISSUED PURSUANT TO AUTHORITY OF THE ABOVE SECTION AND PROVIDES, IN PERTINENT PART---

SECTION 1. ENLISTED MEMBERS ENTITLED TO RECEIVE BASIC PAY SHALL BE ENTITLED TO RECEIVE, ADDITIONALLY, SEA-DUTY PAY WHILE ON SEA DUTY AS DEFINED IN SECTION 2 HEREOF, THE PERIOD OF SUCH DUTY TO INCLUDE THE DATE OF REPORTING AND THE DATE OF DETACHMENT AS STATED IN ORDERS.

SECTION 2. FOR ADDITIONAL-PAY PURPOSES, AND EXCEPT AS OTHERWISE PROVIDED IN SECTION 3, HEREOF, SEA DUTY SHALL MEAN DUTY PERFORMED BY ENLISTED MEMBERS:

(A) WHILE PERMANENTLY ASSIGNED TO A VESSEL, OTHER THAN A VESSEL RESTRICTED TO SERVICE IN THE INLAND WATERS OF THE UNITED STATES OR A NON- SELF-PROPELLED VESSEL, PURSUANT TO ORDERS ISSUED BY COMPETENT AUTHORITY, INCLUDING PERIODS NOT IN EXCESS OF FIFTEEN CONSECUTIVE DAYS EACH WHILE ON TEMPORARY ADDITIONAL DUTY ASHORE.

(C) WHILE ON A VESSEL PURSUANT TO ORDERS ISSUED BY COMPETENT AUTHORITY ALTHOUGH BASED OR STATIONED ASHORE, BUT ONLY WHEN SUCH DUTY IS EIGHT DAYS OR MORE IN DURATION IN EACH CASE.

(D) WHILE ON A VESSEL RESTRICTED TO SERVICE IN THE INLAND WATERS OF THE UNITED STATES OR ON A NON-SELF-PROPELLED VESSEL, BUT ONLY ON DAYS WHEN SUCH VESSEL IS ACTUALLY OPERATING OUTSIDE OF INLAND WATERS FOR A PERIOD OF EIGHT DAYS OR MORE IN EACH CASE.

SECTION 8. THE SECRETARIES CONCERNED (WITHIN THE MEANING OF SECTION 102 (F) OF THE SAID CAREER COMPENSATION ACT OF 1949) * * * ARE HEREBY AUTHORIZED TO PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS, NOT INCONSISTENT HEREWITH. * * *

SUPPLEMENTARY REGULATIONS CONCERNING ADDITIONAL PAY FOR SEA DUTY, ISSUED BY THE SECRETARY OF THE NAVY UNDER THE AUTHORITY OF SECTION 8, ARE CONTAINED IN PARAGRAPH 1044060-2B, VOLUME 4, NAVY COMPTROLLER MANUAL, AS CHANGED BY CHANGES 11 AND 14 DATED DECEMBER 23, 1953, AND FEBRUARY 18, 1954, RESPECTIVELY WHICH PROVIDES:

2B. NO ENLISTED MEMBER WILL BE CONSIDERED TO BE ON SEA DUTY FOR SPECIAL PAY PURPOSES:

5. WHILE ON DUTY ON A VESSEL DURING ANY PERIOD WHILE SUCH VESSEL IS OPERATING OR LOCATED ON THE GREAT LAKES ( LAKES ERIE, HURON, MICHIGAN, ONTARIO, AND SUPERIOR) OR IN A PORT ADJACENT THERETO (THIS PROVISION IS EFFECTIVE 1 NOVEMBER 1953):

ALNAV 119-50, CITED IN LETTER OF MARCH 17, 1955, REPEATS SUBSTANTIALLY THE PROVISIONS OF EXECUTIVE ORDER NO. 10168.

UNDER EXECUTIVE ORDER NO. 10168 IT IS A QUESTION OF FACT WHETHER A PARTICULAR VESSEL IS ON SEA DUTY AND IT REASONABLY APPEARS THAT SUCH ORDER CONTEMPLATES THAT, FOR PURPOSES OF SEA DUTY PAY, SERVICE ON NAVAL VESSELS NORMALLY OPERATING ON THE GREAT LAKES, WHICH ARE CLEARLY INLAND WATERS OF THE UNITED STATES, DOES NOT GIVE A RIGHT TO THAT PAY, EXCEPT WHEN SUCH VESSELS ARE ACTUALLY OPERATING OUTSIDE OF SUCH INLAND WATERS FOR A PERIOD OF EIGHT DAYS OR MORE IN EACH CASE. THE DEPARTMENT OF THE NAVY NOW RECOGNIZES THIS FACT IN CHANGES 11 AND 14 TO PARAGRAPH 1044060, VOLUME 4, NAVY COMPTROLLER MANUAL. HOWEVER, NOTWITHSTANDING THE EXECUTIVE ORDER, PAY FOR SEA DUTY WAS PAID. THE VALIDITY OF SUCH PAYMENTS HAD NOT BEEN DETERMINED BY AN AUTHORITATIVE DECISION BY THE COMPTROLLER GENERAL, EVEN THOUGH A REQUEST FOR SUCH A DECISION WOULD APPEAR TO HAVE BEEN PARTICULARLY APPROPRIATE IN VIEW OF THEIR EVIDENT DOUBTFUL CHARACTER.

THE UNITED STATES CANNOT BE BOUND OR ESTOPPED BY AN ERRONEOUS PAYMENT THROUGH ADMINISTRATIVE ERROR BY ITS OFFICERS, WHETHER MADE UNDER MISTAKE OF FACT OR MISTAKE OF LAW, AND PARTIES RECEIVING SUCH ERRONEOUS PAYMENTS ACQUIRE NO RIGHT TO THEM BUT ARE LIABLE IN EQUITY AND GOOD CONSCIENCE TO REFUND THEM. RECENTLY GROWING SUGGESTIONS TO THE CONTRARY FIND NO SUPPORT IN THE LAW. SEE 29 COMP. GEN. 520 AND THE COURT CASES CITED IN THAT DECISION. NEITHER THE FINANCIAL HARDSHIP WHICH MIGHT RESULT BY REASON OF COLLECTION NOR THE FACT THAT THE PAYMENTS MAY HAVE BEEN RECEIVED IN GOOD FAITH, AFFECTS THEIR VALIDITY, BUT PRESUMABLY IN ORDER TO MINIMIZE SUCH HARDSHIP YOUR DEPARTMENT WOULD GIVE FAVORABLE CONSIDERATION TO LIQUIDATING THE INDEBTEDNESS BY REGULAR MONTHLY INSTALLMENTS FOR THOSE MEN NOW OUT OF THE SERVICE. AS TO THOSE MEN NOW ON ACTIVE DUTY, ATTENTION IS INVITED TO THE ACT OF JULY 15, 1954, 68 STAT. 482, WHICH AUTHORIZES THE COLLECTION OF INDEBTEDNESS OF MILITARY PERSONNEL RESULTING FROM ERRONEOUS PAYMENTS.

THE ENTIRE MATTER HAS BEEN CAREFULLY CONSIDERED BUT WE FIND NO SUFFICIENT BASIS TO CONCLUDE THAT THE PAYMENTS OF SEA DUTY PAY TO PERSONNEL ON BOARD VESSELS OPERATING OR LOCATED ON THE GREAT LAKES DURING THE PERIOD NOVEMBER 1, 1950, TO OCTOBER 31, 1953, WERE AUTHORIZED BY LAW AND EXECUTIVE ORDER NO. 10168 AND, THEREFORE, THE EXCEPTIONS TAKEN TO THOSE PAYMENTS WILL BE CONTINUED. SEE ALSO OUR LETTER OF TODAY B-118140, REPLYING TO YOUR LETTER OF MARCH 30, 1955, CONCERNING ERRONEOUS CREDITS OF SEA DUTY PAY TO MEMBERS SERVING ON BOARD THE U.S.S. SEQUOIA.