B-124474, NOVEMBER 5, 1956, 36 COMP. GEN. 372

B-124474, NOVEMBER 5, 1956, 36 COMP. GEN. 372

MILITARY PERSONNEL - COAST GUARD - SEA-DUTY PAY - PATROL BOATS COAST GUARD PATROL BOATS WHICH ARE PRIMARILY EQUIPPED FOR INLAND WATER DUTY, AND WHICH ARE NOT REGULARLY AT SEA AT LEAST 5 PERCENT OF THE TIME, MAY NOT BE REGARDED AS UNRESTRICTED WITHIN THE MEANING OF EXECUTIVE ORDER NO. 10168 SO AS TO ENTITLED THE MEMBERS TO SEA-DUTY PAY, AND WHETHER VESSELS WHICH SPEND MORE THAN 5 PERCENT OF THE TIME OUTSIDE INLAND WATER BOUNDARIES MAY BE REGARDED AS UNRESTRICTED IS FOR ADMINISTRATIVE DETERMINATION BASED ON EACH PARTICULAR VESSEL AND ITS DUTIES.

TO THE SECRETARY OF THE TREASURY, NOVEMBER 5, 1956:

REFERENCE IS MADE TO A LETTER DATED AUGUST 13, 1956, FROM THE COMMANDANT, UNITED STATES COAST GUARD, IN REPLY TO OUR LETTER TO HIM DATED JULY 2, 1956, B-124474.

SECTION 2 (D) OF EXECUTIVE ORDER NO. 10168, OCTOBER 11, 1950, PROVIDES THAT ENLISTED MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO SEA- DUTY PAY FOR DUTY PERFORMED "WHILE ON A VESSEL RESTRICTED TO SERVICE IN THE INLAND WATERS OF THE UNITED STATES * * * 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.'

ON DECEMBER 23, 1954, THE COAST GUARD ISSUED FINANCE AND SUPPLY MEMORANDUM NO. 54-54, IN WHICH IT WAS STATED THAT COAST GUARD 83- AND 95- FOOT PATROL BOATS WERE CONSIDERED NOT TO BE VESSELS ,RESTRICTED TO SERVICE IN THE INLAND WATERS OF THE UNITED STATES" UNLESS THE PRIMARY DUTIES ASSIGNED TO A PARTICULAR BOAT RESTRICTED ITS SERVICE TO INLAND WATERS; AND THAT EACH DISTRICT COMMANDER WOULD DETERMINE WHETHER THE PRIMARY DUTIES ASSIGNED TO EACH 83- OR 95-FOOT PATROL BOAT ASSIGNED TO HIS DISTRICT RESTRICTED ITS SERVICES TO INLAND WATERS. IT IS UNDERSTOOD THAT AS A RESULT OF SUCH DETERMINATIONS ENLISTED PERSONNEL ASSIGNED TO PRACTICALLY ALL 83- AND 95-FOOT PATROL BOATS OPERATING FROM HOME PORTS WITHIN THE CONTINENTAL UNITED STATES WERE CREDITED WITH SEA DUTY PAY BEGINNING JANUARY 1, 1955; AND THAT PAYMENTS OF SUCH PAY TO THESE ENLISTED MEN WERE DISCONTINUED APRIL 1, 1956.

IN OUR LETTER OF JULY 2, 1956, WE STATED THAT IT WAS OUR UNDERSTANDING THAT NEARLY ALL OF THE COAST GUARD 83- AND 95-FOOT PATROL BOATS WERE BERTHED AND SPENT MOST OF THEIR TIME INSIDE THE INLAND WATER LINES, ALTHOUGH THEY MIGHT OCCASIONALLY GO OUTSIDE FOR BRIEF PERIODS; THAT THEY WERE NOT EQUIPPED FOR EXTENDED OPERATIONS AT SEA; THAT THE MEMBERS ASSIGNED TO SUCH VESSELS HABITUALLY LIVED AND MESSED ASHORE; AND THAT SOME OF THE BOATS DID NOT HAVE OCCASION TO CROSS THE INLAND WATER BOUNDARY FOR 5 OR 6 MONTHS AT A TIME. WE CONCLUDED THAT, IN VIEW OF THE LANGUAGE OF EXECUTIVE ORDER NO. 10168, THERE WAS NO REASONABLE BASIS FOR ALLOWING ENLISTED PERSONNEL ASSIGNED TO 83- AND 95-FOOT PATROL BOATS, WHICH OPERATED ENTIRELY OR ALMOST ENTIRELY WITHIN THE INLAND WATERS OF THE UNITED STATES, TO RETAIN SEA-DUTY PAY EXCEPT FOR PERIODS, IF ANY, OF 8 DAYS OR MORE OF ACTUAL OPERATION OUTSIDE OF SUCH WATERS.

IN HIS LETTER OF AUGUST 13, 1956, THE COMMANDANT STATES THAT IT HAS BEEN THE COAST GUARD'S VIEW THAT THE REQUIREMENT THAT CREWS OF VESSELS RESTRICTED TO INLAND WATERS ARE ENTITLED TO SEA-DUTY PAY ONLY AFTER VOYAGES OF EIGHT OR MORE DAYS' DURATION IS A SAVINGS CLAUSE, APPLYING ONLY IN THOSE RARE INSTANCES WHERE INLAND-OPERATED CRAFT MAKE AN OCEAN VOYAGE UNDER UNUSUAL CIRCUMSTANCES, SUCH AS, FOR EXAMPLE, FROM ONE COAST TO THE OTHER IN CASES OF REDEPLOYMENT; AND THAT THIS CLAUSE HAS NEVER BEEN CONSTRUED BY THE COAST GUARD TO APPLY TO SMALLER VESSELS STATIONED IN LOCALITIES WHERE THEY ARE PRIMARILY INTENDED FOR ASSISTANCE OR PATROL WORK ON THE OPEN SEA. ALSO, THE COMMANDANT STATES THAT:

THE COAST GUARD WOULD PROPOSE, THEREFORE, AS THE PROPER SOLUTION TO THIS PROBLEM, TO APPLY THE CRITERIA THE COMPTROLLER GENERAL HAS IN EFFECT SUGGESTED. FIRST, SEA PAY WOULD BE PAID ONLY TO PERSONS WHO ARE MEMBERS OF A MESS ON BOARD SHIP AND DO NOT RECEIVE A SUBSISTENCE ALLOWANCE. SECONDLY, IT WOULD BE PAID ONLY TO PERSONS SERVING ON BOARD VESSELS THAT REGULARLY OPERATE OFF SHORE IN UNPROTECTED WATERS.

A LONG LINE OF JUDICIAL DECISIONS IS AUTHORITY FOR THE RULE THAT THE RIGHT TO SEA-DUTY PAY DEPENDS UPON WHETHER THE INDIVIDUAL CONCERNED PERFORMS SERVICE UNDER THE "GENERAL RESTRICTIONS, REGULATIONS AND REQUIREMENTS THAT ARE INCIDENT OR PECULIAR TO SERVICE ON THE HIGH SEAS.' UNITED STATES V. SYMONDS, 120 U.S. 46. SUCH RESTRICTIONS, REGULATIONS AND REQUIREMENTS INCLUDED HAVING QUARTERS ON BOARD, BEING FORBIDDEN TO LIVE WITH ONE'S FAMILY, MESSING ON BOARD, AND WEARING OF THE UNIFORM. SYMONDS CASE, SUPRA; UNITED STATES V. STRONG, 125 U.S. 656; UNITED STATES V. BARNETTE, 165 U.S. 174.

THE STATEMENT IN OUR LETTER OF JULY 2, 1956, THAT WE UNDERSTOOD THAT THE MEMBERS ASSIGNED TO 83- AND 95-FOOT PATROL BOATS HABITUALLY LIVED AND MESSED ASHORE WAS BASED UPON TENTATIVE INFORMATION THEN BEFORE US. THE COMMANDANT'S LETTER OFFERS NO COMMENT ON THAT STATEMENT. HOWEVER, WE HAVE RECEIVED A COPY OF A MEMORANDUM OF THE CHIEF, BUDGET AND COST ANALYSIS DIVISION, COAST GUARD, DATED AUGUST 16, 1956, IN WHICH IT IS STATED--- IN CONNECTION WITH A CANVASS OF THE OPERATIONS OF 82 VESSELS UNDER 125 FEET IN LENGTH FOR THE PERIOD JANUARY 1 TO JUNE 30, 1956--- THAT---

IN ALL CASES, THE CREWS ARE BERTHED ABOARD WHEN THE VESSEL IS NOT UNDERWAY. ON ALL BUT ONE VESSEL THE CREWS MESS ABOARD WHEN NOT UNDERWAY. THE COMPLEMENT OF EACH CALLS FOR A COOK. NONE OF THE CREW MEMBERS RECEIVE SUBSISTENCE ALLOWANCE.

ON THE BASIS OF THIS INFORMATION RESPECTING THE SITUATION OF PERSONNEL ON 83- AND 95-FOOT PATROL BOATS, IT APPEARS THAT, GENERALLY, THE MEN INVOLVED MET THE REQUIREMENTS IN THAT RESPECT FOR SEA-DUTY PAY FOR THE PERIOD JANUARY 1 TO JUNE 30, 1956. PRESUMABLY, THE SAME CONDITIONS PREVAILED DURING 1955. HOWEVER, THE PROVISIONS OF EXECUTIVE ORDER NO. 10168, QUOTED ABOVE, CANNOT BE IGNORED. THOSE PROVISIONS WOULD SEEM TO CONTEMPLATE THAT A VESSEL WHICH USUALLY OR PRIMARILY OPERATES WITHIN THE INLAND WATERS OF THE UNITED STATES IS TO BE REGARDED AS "RESTRICTED" TO SERVICE IN SUCH WATERS, WITHIN THE MEANING OF THE EXECUTIVE ORDER, EVEN THOUGH THE VESSEL MAY OCCASIONALLY OPERATE OUTSIDE OF THE INLAND WATERS. OTHERWISE, THE EXCEPTION AS TO OPERATIONS OF "RESTRICTED" VESSELS OUTSIDE OF INLAND WATERS FOR 8 DAYS OR MORE WOULD APPEAR TO BE MEANINGLESS.

THE COMMANDANT OF THE COAST GUARD SUGGESTS THAT THIS EXCEPTION WAS INTENDED AS A SAVINGS CLAUSE APPLYING ONLY IN RARE INSTANCES SUCH AS THE REDEPLOYMENT OF A VESSEL FROM ONE COAST TO THE OTHER. THE EXECUTIVE ORDER, HOWEVER, SAYS "OPERATING OUTSIDE OF INLAND WATERS" AND THE WORD "OPERATING" CONNOTES SOMETHING MORE THAN THE MERE MOVEMENT OR TRANSFER BY SEA OF A VESSEL FROM ONE PLACE TO ANOTHER FOR INLAND WATER DUTY. APPEARS REASONABLY TO MEAN THAT A VESSEL PRIMARILY ENGAGED ON INLAND WATER DUTY DOES NOT LOSE ITS "RESTRICTED" STATUS BECAUSE ITS OPERATIONS OCCASIONALLY REQUIRE IT TO GO OUTSIDE THE INLAND WATERS.

THE DIFFICULTY COMES IN DETERMINING WHETHER AND TO WHAT EXTENT THE VESSELS HERE INVOLVED ARE FAIRLY TO BE REGARDED AS PRIMARILY ENGAGED ON INLAND WATER DUTY. THEY ARE GENERALLY BERTHED ON OR NEAR THE PERIPHERY OF OUR COAST LINES ADJACENT TO OUTSIDE WATERS. WHILE THE COMMANDANT CONCEDES THAT SOME OF THESE VESSELS SHOULD HAVE A "RESTRICTED" STATUS, HE REFERS TO OTHERS AS OPERATING REGULARLY IN THE OPEN OCEAN UNDER CONDITIONS AT LEAST AS RIGOROUS AS THOSE ENCOUNTERED BY LARGER SHIPS; TO VESSELS STATIONED IN LOCALITIES WHERE THEY ARE PRIMARILY INTENDED FOR ASSISTANCE OR PATROL WORK ON THE OPEN SEA; TO CRAFT WHICH NOW STAND READY IN COASTAL LOCALITIES TO PROCEED OFF SHORE TO THE ASSISTANCE OF LARGER SHIPS IN DISTRESS UNDER THE MOST DIFFICULT CONDITIONS OF SEA OR WEATHER; TO CERTAIN VESSELS WHICH WERE UNDERWAY AND ACTUALLY AT SEA FOR AS MUCH AS TWO MONTHS DURING THE FIRST 6 MONTHS OF THIS YEAR; AND TO VESSELS THAT REGULARLY OPERATE OFF SHORE IN UNPROTECTED WATERS.

WE NOW HAVE DETAILED DATA ACCUMULATED BY THE COAST GUARD PERTAINING TO THE OPERATION OF EACH OF 82 OF THEIR VESSELS UNDER 125 FEET COVERING THE 6 MONTHS FROM JANUARY 1 TO JUNE 30, 1956. THE MISSIONS OF THESE VESSELS ARE SHOWN VARIOUSLY AS " SEARCH AND RESCUE," " CAPTAIN OF THE PORT IES," " HARBOR ENTRANCE PATROL," AND " IDENTIFICATION PATROL.' IT APPEARS FROM SUCH DATA THAT---

1. DURING THE 6 MONTHS, THREE OF THE VESSELS WERE NEVER OUTSIDE THE INLAND WATERS; FOUR OF THE VESSELS WERE OUT ONLY ONCE; TWO OF THEM WERE OUT ONLY TWICE; TWO OF THEM WERE OUT THREE TIMES; ONE OF THEM WAS OUT FOUR TIMES; TWO OF THEM WERE OUT FIVE TIMES; AND TWO OF THEM WERE OUT SIX TIMES. NONE OF THESE 16 VESSELS WENT OUTSIDE MORE THAN ONCE A MONTH, ON THE AVERAGE. IN ADDITION, 14 OTHER VESSELS DID NOT GO OUTSIDE MORE THAN TWICE A MONTH, ON THE AVERAGE.

2. SIXTY OF THE 82 VESSELS SPENT MORE THAN 95 PERCENT OF THEIR TIME INSIDE.

3. THE OTHER 22 VESSELS, OR APPROXIMATELY ONE OUT OF FOUR, SPENT MORE THAN 5 PERCENT OF THEIR TIME OUTSIDE, SOME OF THEM RANGING UP TO ALMOST ONE-THIRD OF THEIR TIME. ONLY 14 OF THESE SPENT MORE THAN 10 PERCENT OF THEIR TIME OUTSIDE.

THIS APPEARS TO PRESENT BASICALLY (WITH ALLOWABLE EXCEPTIONS) A PICTURE OF VESSELS GENERALLY ,RESTRICTED TO SERVICE IN THE INLAND WATERS.' WHETHER THE MIXED MISSIONS OF ANY PARTICULAR VESSEL SO SITUATED WARRANTS A NONRESTRICTED RATING FOR SEA-DUTY PAY IS, OF COURSE, PRIMARILY A MATTER FOR ADMINISTRATIVE DETERMINATION, CONSISTENT WITH THE LAW AND THE EXECUTIVE ORDER, AND THE COMMANDANT ADVISES THAT A SURVEY HAS BEEN UNDERTAKEN TO APPLY MORE REALISTIC STANDARDS IN THAT RESPECT. ORDINARILY THIS OFFICE WOULD HAVE NO OCCASION TO QUESTION SUCH DETERMINATIONS, REASONABLY SUPPORTED, BUT WE BELIEVE THE COMMANDANT WILL AGREE THAT VESSELS SPENDING MORE THAN 95 PERCENT OF THEIR TIME INSIDE, OVER A REPRESENTATIVE PERIOD, CANNOT BE REGARDED AS UNRESTRICTED FAIRLY WITHIN THE INTENT OF THE EXECUTIVE ORDER. BY THIS, WE DO NOT MEAN TO DRAW AN ARBITRARY LINE OF DEMARCATION, NOT INDICATED BY THE STATUTE OR EXECUTIVE ORDER, OR TO SUGGEST THAT ANY VESSEL SPENDING MORE THAN 5 PERCENT OF ITS TIME OUTSIDE THE INLAND WATER BOUNDARIES MAY PROPERLY BE REGARDED AS UNRESTRICTED. THAT IS A MATTER TO BE CONSIDERED TOGETHER WITH ALL OTHER FACTORS BEARING ON THE QUESTION IN MAKING A REALISTIC ADMINISTRATIVE DETERMINATION WITH RESPECT TO EACH VESSEL AND ITS DUTIES. WE GO NO FURTHER THAN TO SAY THAT ON THE WHOLE RECORD AS IT APPEARS AT THIS TIME, WE BELIEVE WE CLEARLY WOULD NOT BE JUSTIFIED IN ALLOWING CREDIT OR APPROVING PAYMENTS UNDER EXISTING AND PRIOR ADMINISTRATIVE DETERMINATIONS IN ANY CASE WHERE IT CANNOT BE SHOWN THAT THE DUTIES OF THE VESSEL REGULARLY KEEP OR KEPT IT AT SEA (BEYOND THE INLAND WATER BOUNDARIES) AT LEAST 5 PERCENT OF THE TIME.

IN CASES OTHERWISE PROPER, THE ACCOUNTS WILL BE ADJUSTED AND SETTLED ON THAT BASIS, PENDING SUCH CHANGES AS MAY BE WARRANTED FOR THE FUTURE IN THE LIGHT OF ADMINISTRATIVE STANDARDS AND PROCEDURE WHICH MAY BE PRESCRIBED TO GOVERN THE MATTER.