B-125486, APRIL 24, 1956, 35 COMP. GEN. 578

B-125486: Apr 24, 1956

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WHO ARE NOT REGULARLY ASSIGNED TO DIVING DUTY. ARE NOT ENTITLED TO THE SPECIAL DIVING-DUTY PAY PRESCRIBED IN SECTION 205 (A) OF THE CAREER COMPENSATION ACT OF 1949. THEY ARE ENTITLED TO THE SPECIAL BENEFITS PRESCRIBED IN SECTION 205 (B) FOR DIVERS IN ACTUAL SALVAGE OR REPAIR OPERATIONS PROVIDED THE SPECIFIC CONDITIONS HAVE OTHERWISE BEEN MET. 1956: REFERENCE IS MADE TO YOUR LETTER OF APRIL 1. IT IS STATED THAT THESE TWO ENLISTED MEN WERE DIRECTED BY COMPETENT AUTHORITY TO PERFORM DIVES IN EMERGENCY REPAIR OPERATIONS CONDUCTED DURING THE APPROXIMATE PERIOD FROM JANUARY 16. APPEARS THAT EACH ENLISTED MAN WAS A QUALIFIED DIVER. THE SHIP'S DIVING OFFICER HAS CERTIFIED THAT THE DIVES WERE MADE UNDER EXTRAORDINARY HAZARDOUS CONDITIONS.

B-125486, APRIL 24, 1956, 35 COMP. GEN. 578

NAVY ENLISTED PERSONNEL - PAY ADDITIONAL - DIVING DUTY ALTHOUGH NAVY ENLISTED PERSONNEL WHO PERFORM DIVES IN EMERGENCY REPAIR OPERATIONS, BUT WHO ARE NOT REGULARLY ASSIGNED TO DIVING DUTY, ARE NOT ENTITLED TO THE SPECIAL DIVING-DUTY PAY PRESCRIBED IN SECTION 205 (A) OF THE CAREER COMPENSATION ACT OF 1949. THEY ARE ENTITLED TO THE SPECIAL BENEFITS PRESCRIBED IN SECTION 205 (B) FOR DIVERS IN ACTUAL SALVAGE OR REPAIR OPERATIONS PROVIDED THE SPECIFIC CONDITIONS HAVE OTHERWISE BEEN MET.

TO H. L. DAVIS, DEPARTMENT OF THE NAVY, APRIL 24, 1956:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 1, 1955, WITH ENDORSEMENTS, FORWARDED BY THE JUDGE ADVOCATE GENERAL OF THE NAVY WITH TRANSMITTAL LETTER DATED SEPTEMBER 13, 1955, REQUESTING DECISION AS TO THE LEGALITY OF CREDITING THE PAY ACCOUNTS OF HAROLD W. POKORNY, FIREMAN, U. S. NAVY, AND ROBERT L. WILSON, METALSMITH, FIRST CLASS, U.S. NAVY, WITH ADDITIONAL PAY FOR DIVES PERFORMED BY THEM IN EMERGENCY REPAIR OPERATIONS.

IT IS STATED THAT THESE TWO ENLISTED MEN WERE DIRECTED BY COMPETENT AUTHORITY TO PERFORM DIVES IN EMERGENCY REPAIR OPERATIONS CONDUCTED DURING THE APPROXIMATE PERIOD FROM JANUARY 16, 1955, TO JANUARY 24, 1955. APPEARS THAT EACH ENLISTED MAN WAS A QUALIFIED DIVER, SECOND CLASS, AND THE SHIP'S DIVING OFFICER HAS CERTIFIED THAT THE DIVES WERE MADE UNDER EXTRAORDINARY HAZARDOUS CONDITIONS. HOWEVER, THE ALLOWANCE FOR DIVERS, SECOND CLASS, ABOARD THE U.S.S. IOWA WAS THEN FULL AND IN THE ABSENCE OF AUTHORIZED VACANCIES THE ENLISTED MEN CONCERNED HAD NOT BEEN DETAILED TO REGULAR DIVING DUTY. THUS, THE QUESTION PRESENTED RELATES TO THE VALIDITY OF CREDITING THE PAY ACCOUNTS OF THESE TWO ENLISTED MEN WITH ADDITIONAL PAY FOR DIVING IN ACTUAL REPAIR OPERATIONS INVOLVING EXTRAORDINARY HAZARDOUS CONDITIONS.

DURING THE PERIOD HERE INVOLVED SECTION 205 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 810, 37 U.S.C. 236, PROVIDED AS FOLLOWS:

(A) AN ENLISTED PERSON OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY AND ASSIGNED TO THE DUTY OF DIVING SHALL, IN ADDITION TO BASIC PAY, BE ENTITLED TO RECEIVE SPECIAL PAY, UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY CONCERNED, AT THE RATE OF NOT LESS THAN $5 PER MONTH AND NOT EXCEEDING $30 PER MONTH.

(B) MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY AND EMPLOYED AS DIVERS IN ACTUAL SALVAGE OR REPAIR OPERATIONS IN DEPTHS OF OVER NINETY FEET, OR IN DEPTHS OF LESS THAN NINETY FEET, WHEN THE OFFICER IN CHARGE OF THE SALVAGE OR REPAIR OPERATION SHALL FIND, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, THAT ESTRAORDINARILY HAZARDOUS CONDITIONS EXIST, SHALL, IN ADDITION TO BASIC PAY, BE ENTITLED TO RECEIVE THE SUM OF $5 PER HOUR FOR EACH HOUR OR FRACTION THEREOF WHILE SO EMPLOYED. THE AMOUNTS AUTHORIZED TO BE PAID PURSUANT TO THIS SUBSECTION SHALL, IN THE CASE OF ENLISTED PERSONS, BE IN ADDITION TO THE AMOUNTS AUTHORIZED PURSUANT TO SUBSECTION (A) OF THIS SECTION.

(C)NO MEMBER OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE THE SPECIAL PAY AUTHORIZED PURSUANT TO THIS SECTION IN ADDITION TO INCENTIVE PAY AUTHORIZED PURSUANT TO SECTION 204 OF THIS ACT.

(D) THE PRESIDENT MAY, IN TIME OF WAR, SUSPEND THE PAYMENT OF DIVING-DUTY PAY.

IT WILL BE NOTED THAT UNDER THE PROVISIONS OF SUBSECTION (A) AND SUBJECT TO PRIOR QUALIFICATION AND DESIGNATION AS A DIVER IN ONE OF THE FOUR CLASSES OF DIVERS ESTABLISHED IN THE REGULATIONS AUTHORIZED TO BE PRESCRIBED BY SECRETARY OF THE NAVY (SEE ARTICLES A-4202, DIVING PAY AND C -7408, QUALIFICATIONS FOR DIVERS, BUREAU OF NAVAL PERSONNEL MANUAL, 1948), ENLISTED MEMBERS OF THE NAVAL SERVICE WHO ARE "ENTITLED TO RECEIVE THE SPECIAL DIVING-DUTY PAY THEREIN PRESCRIBED AT THE RATE OF NOT LESS THAN $5 PER MONTH FOR EXCEEDING $30 PER MONTH. THE SPECIAL DIVING-DUTY PAY AUTHORIZED IN SUBSECTION (A) THUS ACCRUES TO THE INDIVIDUAL CONCERNED AT THE PRESCRIBED MONTHLY RATE ONLY FOR THE PERIOD (1) SUCH INDIVIDUAL CONCERNED AT THE PRESCRIBED MONTHLY RATE ONLY FOR THE PERIOD (1) SUCH INDIVIDUAL IS QUALIFIED AS A DIVER AND (2) HIS DESIGNATION AS SUCH DIVER AND HIS DETAIL AND ASSIGNMENT TO THE DUTY OF DIVING REMAINS IN EFFECT. INASMUCH AS THE TWO ENLISTED MEN HERE CONCERNED WERE NOT DETAILED OR ASSIGNED TO THE DUTY OF DIVING, THEY ARE NOT ENTITLED FOR ANY PART OF THE PERIOD UNDER CONSIDERATION TO THE SPECIAL DIVING-DUTY PAY PRESCRIBED IN SUBSECTION (A).

SUBSECTION (B) EXPRESSLY PROVIDED THAT MEMBERS OF THE UNIFORMED SERVICES "ENTITLED TO RECEIVE BASIC PAY AND EMPLOYED AS DIVERS" UNDER THE SPECIFIC CONDITIONS THEREIN PRESCRIBED "SHALL, IN ADDITION TO BE ENTITLED TO RECEIVE THE SUM OF $5 PER HOUR FOR EACH HOUR OR FRACTION THEREOF WHILE SO EMPLOYED.' SUBSECTION (B) FURTHER PROVIDED THAT THE AMOUNTS AUTHORIZED TO BE PAID PURSUANT THERETO, SHALL, IN THE CASE OF ENLISTED PERSONS "BE IN ADDITION TO THE AMOUNTS AUTHORIZED PURSUANT TO SUBSECTION (A) OF THIS SECTION.'

UNDER THIS LATTER STATUTORY PROVISION A MEMBER OF THE UNIFORMED SERVICES WHO IS OTHERWISE ENTITLED TO RECEIVE BASIC PAY IS FURTHER ENTITLED TO RECEIVE AN ADDITIONAL AMOUNT AT THE RATE OF $5 PER HOUR OR FRACTION THEREOF WHILE EMPLOYED AS A DIVER IN SALVAGE OR REPAIR OPERATIONS WHICH ARE CONDUCTED UNDER THE CONDITIONS SET FORTH. HENCE, IT SEEMS CLEAR THAT THE BENEFITS PRESCRIBED IN SUBSECTION (B) ARE ENTIRELY SEPARATE AND DISTINCT FROM THOSE PROVIDED IN SUBSECTION (A); THAT ENTITLEMENT TO THE BENEFITS OF SUBSECTION (B) DEPENDS SOLELY UPON WHETHER THE INDIVIDUAL CONCERNED MEETS THE SPECIFIC CONDITIONS PRESCRIBED IN THAT SUBSECTION AND THAT AN INDIVIDUAL'S RIGHT TO THE BENEFITS OF SUBSECTION (B) IS NOT CONTINGENT UPON WHETHER SUCH INDIVIDUAL IS QUALIFIED, FOR THE SAME PERIOD OF TIME, TO RECEIVE THE BENEFITS PRESCRIBED IN SUBSECTION (A). ACCORDINGLY, THE FACT THAT THE TWO ENLISTED MEN HERE IN QUESTION WERE NOT DETAILED TO THE DUTY OF DIVING DURING THE PERIOD INVOLVED--- WHICH FACT DOES PRECLUDE THEM FROM RECEIVING THE SPECIAL DIVING-DUTY PAY AT THE MONTHLY RATE PRESCRIBED IN SUBSECTION (A/--- DOES NOT AFFECT THEIR RIGHT TO THE SPECIFIC BENEFITS PRESCRIBED IN SUBSECTION (B), PROVIDED, OF COURSE, THAT THEIR DUTY STATUS OTHERWISE ENTITLES THEM TO THE BENEFITS OF SUBSECTION (B).

THE INDIVIDUAL ORDER TO ADJUST PAY RECORD ( NAVS AND A--- FORM 515) ISSUED IN THE CASE OF POKORNY, SHOWS THE NUMBER OF DIVES PERFORMED BY HIM IN THE EMERGENCY REPAIR OPERATIONS IN QUESTION AND THAT ALL OF THE DIVES WHICH HE ACCOMPLISHED WERE TO DEPTHS OF LESS THAN 90 FEET. WILSON SIMILARLY IS SHOWN TO HAVE PERFORMED DIVES IN THE SAME EMERGENCY REPAIR OPERATIONS TO DEPTHS OF LESS THAN 90 FEET. IN EACH CASE A STATEMENT APPEARS ON FORM 515 TO THE EFFECT THAT THE " SHIP'S DIVING OFFICER CERTIFIED THAT DIVES WERE MADE UNDER EXTRAORDINARY HAZARDOUS CONDITIONS.' THIS INFORMATION, HOWEVER, DOES NOT INDICATE WHETHER THE SHIP'S DIVING OFFICER, WHO MADE THE CERTIFICATION ABOVE REFERRED TO, IS THE OFFICER WHO WAS IN CHARGE OF THE EMERGENCY REPAIR OPERATIONS. NOR DO THE STATEMENTS THAT THE DIVES WERE MADE UNDER EXTRAORDINARY HAZARDOUS CONDITIONS SHOW WHICH ONE OF THE CONDITIONS EXISTED WHICH ARE ENUMERATED IN ARTICLE A-4202 (2), BUREAU OF NAVAL PERSONNEL MANUAL, 1948, AND WHICH ARE DEEMED TO CONSTITUTE EXTRAORDINARY HAZARDOUS CONDITIONS FOR THE PURPOSES OF SUBSECTION (B). SEE ALSO ARTICLE A-4202 (3), OF THE SAME REGULATIONS.

CONSEQUENTLY, IN THE ABSENCE OF SPECIFIC INFORMATION WITH RESPECT TO THESE FACTORS, WE ARE UNABLE TO DETERMINE THAT POKORNY AND WILSON, OR EITHER OF THEM, HAVE IN FACT MET THE CONDITIONS PRESCRIBED IN SUBSECTION (B) SO AS TO BE ENTITLED TO RECEIVE THE BENEFITS PRESCRIBED. IF, HOWEVER, THE OFFICER WHO WAS IN CHARGE OF THE EMERGENCY REPAIR OPERATIONS HAS FOUND OR DOES FIND, IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE A-4202 (2), OR (3), BUREAU OF NAVAL PERSONNEL MANUAL, 1948, THAT EXTRAORDINARY HAZARDOUS CONDITIONS DID EXIST, AND SUCH FINDING IS DULY ENTERED IN THE PERTINENT PAY RECORDS OF THE TWO ENLISTED MEN, THE PAYMENT TO THEM OF THE SUM OF $5 PER HOUR FOR EACH HOUR OR FRACTION THEREOF WHILE THEY WERE EMPLOYED AS DIVERS IN ACTUAL REPAIR OPERATIONS UNDER THE CONDITIONS SPECIFIED IN SUBSECTION (B) WOULD BE AUTHORIZED.