B-128802, SEPTEMBER 26, 1956, 36 COMP. GEN. 237

B-128802: Sep 26, 1956

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PERFORM DUTY ON SUBMARINES OF FOREIGN GOVERNMENTS ARE ENTITLED TO THE EXTRA HAZARDOUS DUTY PAY PROVIDED IN SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949. 1956: REFERENCE IS MADE TO LETTER DATED JULY 28. FROM THE ASSISTANT SECRETARY OF THE NAVY ( FINANCIAL MANAGEMENT) REQUESTING DECISION WHETHER CERTAIN NAVAL PERSONNEL ARE ENTITLED TO INCENTIVE PAY UNDER THE CAREER COMPENSATION ACT OF 1949 FOR THE PERFORMANCE OF HAZARDOUS DUTY WHILE SERVING ON SUBMARINES BELONGING TO FOREIGN GOVERNMENTS. THE FIRST INVOLVES OFFICERS AND ENLISTED MEN WHO WILL BE ORDERED TO DUTY ABOARD TWO SUBMARINES TO BE LOANED TO THE REPUBLIC OF BRAZIL. WHO WILL BE RETAINED ABOARD FOR TRAINING AND OPERATIONAL ASSISTANCE AFTER DELIVERY OF THE VESSELS TO THE BRAZILIAN GOVERNMENT.

B-128802, SEPTEMBER 26, 1956, 36 COMP. GEN. 237

MILITARY PERSONNEL - SUBMARINE PAY - DUTY ON SUBMARINES OF FOREIGN GOVERNMENTS NAVAL PERSONNEL WHO, UNDER COMPETENT ORDERS, PERFORM DUTY ON SUBMARINES OF FOREIGN GOVERNMENTS ARE ENTITLED TO THE EXTRA HAZARDOUS DUTY PAY PROVIDED IN SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949.

TO THE SECRETARY OF THE NAVY, SEPTEMBER 26, 1956:

REFERENCE IS MADE TO LETTER DATED JULY 28, 1956, FROM THE ASSISTANT SECRETARY OF THE NAVY ( FINANCIAL MANAGEMENT) REQUESTING DECISION WHETHER CERTAIN NAVAL PERSONNEL ARE ENTITLED TO INCENTIVE PAY UNDER THE CAREER COMPENSATION ACT OF 1949 FOR THE PERFORMANCE OF HAZARDOUS DUTY WHILE SERVING ON SUBMARINES BELONGING TO FOREIGN GOVERNMENTS, UNDER THREE DESCRIBED SITUATIONS.

THE FIRST INVOLVES OFFICERS AND ENLISTED MEN WHO WILL BE ORDERED TO DUTY ABOARD TWO SUBMARINES TO BE LOANED TO THE REPUBLIC OF BRAZIL, AND WHO WILL BE RETAINED ABOARD FOR TRAINING AND OPERATIONAL ASSISTANCE AFTER DELIVERY OF THE VESSELS TO THE BRAZILIAN GOVERNMENT. THE SECOND SITUATION PERTAINS TO NAVAL PERSONNEL ORDERED TO TEMPORARY ADDITIONAL DUTY ABOARD OPERATING SUBMARINES OF FOREIGN GOVERNMENTS AS OBSERVERS OR FOR OTHER AUTHORIZED DUTY, AND THE THIRD INSTANCE INVOLVES NAVAL OFFICERS ORDERED TO DUTY WITH THE BRITISH ROYAL NAVY AS EXCHANGE OFFICERS, IN WHICH CAPACITY THEY PERFORM SUBMARINE DUTY ON BOARD BRITISH NAVY SUBMARINES.

PRIOR TO ITS REPEAL THE ACT OF APRIL 9, 1928, 45 STAT. 412, AS AMENDED, 34 U.S.C. (1946 EDITION) 886, PROVIDED, IN PERTINENT PART, THAT:

ALL OFFICERS AND ENLISTED MEN OF THE NAVY ON DUTY ON BOARD A SUBMARINE OF THE NAVY * * * SHALL, WHILE SO SERVING, RECEIVE 50 PER CENTUM ADDITIONAL OF THE PAY OF THEIR RANK OR RATING * * *. ( ITALICS SUPPLIED.)

THE ASSISTANT SECRETARY'S LETTER REFERS TO TWO DECISIONS IN WHICH WE CONSTRUED THAT PROVISION. IN THE DECISION OF JUNE 29, 1945, B-49151, IT WAS HELD THAT PAY FOR SUBMARINE DUTY ACCRUED TO AN OFFICER OF THE UNITED STATES NAVY WHO WAS ASSIGNED TO DUTY ABOARD A SUBMARINE OF THE BRAZILIAN NAVY WHICH, DURING THE PERIOD IN QUESTION, HAD BEEN LOANED TO THE UNITED STATES, IT BEING CONSIDERED THAT WHILE BEING SO UTILIZED THE SUBMARINE WAS, IN EFFECT, A SUBMARINE OF THE UNITED STATES NAVY.

IN DECISION OF APRIL 18, 1947, B-63531, WE HELD THAT AN OFFICER OF THE UNITED STATES NAVY WAS NOT ENTITLED TO SUBMARINE PAY WHILE SERVING ON BOARD A SUBMARINE OF THE PERUVIAN NAVY, IT APPEARING THAT THE SERVICES OF THE OFFICER THERE CONCERNED WERE "BEING UTILIZED BY, AND FOR THE PURPOSES OF, THE PERUVIAN NAVY" AND THAT HE WAS NOT "SERVING ON BOARD ANY SUBMARINE WHICH PROPERLY COULD BE CONSIDERED A SUBMARINE OF THE UNITED STATES NAVY OR, IN OTHER WORDS, A "SUBMARINE OF THE NAVY" WITHIN THE MEANING OF THE STATUTORY AUTHORITY FOR PAYMENT OF SUBMARINE PAY.'

AS POINTED OUT IN THE ASSISTANT SECRETARY'S LETTER, THE ACT OF APRIL 9, 1928, AS AMENDED, SUPRA, WAS REPEALED BY SECTION 531 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 838, 839. SECTION 204 OF THE LATTER ACT, 63 STAT. 809, 810, 37 U.S.C. 235, PROVIDES INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY, INCLUDING "DUTY ON BOARD A SUBMARINE, INCLUDING SUBMARINES UNDER CONSTRUCTION FROM THE TIME BUILDERS' TRIALS COMMENCE.' AS FURTHER POINTED OUT IN THE ASSISTANT SECRETARY'S LETTER, THE WORDS "OF THE NAVY" WHICH IMMEDIATELY FOLLOWED THE WORD WORD "SUBMARINE" IN THE 1928 ACT, AS AMENDED, HAVE BEEN OMITTED FROM THE 1949 ACT.

IT IS STATED IN THE ASSISTANT SECRETARY'S LETTER THAT NOTHING HAS BEEN FOUND IN THE HEARINGS OF SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, WHICH WOULD EXPLAIN THE ABOVE OMISSION. NOR DO OTHER PORTIONS OF THE LEGISLATIVE HISTORY OF THAT SECTION SHED ANY LIGHT ON THE MATTER.

THERE MAY BE GROUNDS FOR THE VIEW THAT THE LANGUAGE CONTAINED IN SECTION 204 OF THE CAREER COMPENSATION ACT DOES NOT EXTEND THE BENEFITS OF SUBMARINE DUTY PAY BEYOND THOSE MORE SPECIFICALLY RESTRICTED BY USE OF THE TERM "OF THE NAVY" APPEARING IN THE REPEALED STATUTE--- QUITE OBVIOUSLY MEANING SUBMARINES UNDER THE CONTROL OF THE UNITED STATES NAVY. THAT VIEW, OF COURSE, WOULD WARRANT APPLICATION OF OUR PRIOR DECISIONS ON THE SUBJECT, WHICH WERE RENDERED UNDER THE PROVISIONS OF THE REPEALED STATUTE. AS HAS BEEN INDICATED IN THE LETTER FROM THE ASSISTANT SECRETARY OF THE NAVY AND CONFIRMED BY OUR RESEARCH, NOTHING HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF SECTION 204 WHICH WOULD FURNISH ASSISTANCE IN ARRIVING AT A DEFINITE SOLUTION AS TO THE PURPOSE INTENDED TO BE ACCOMPLISHED BY THE CHANGE IN THE LANGUAGE, AND IN THIS RESPECT APPLICATION OF THE ORDINARY RULES FOR THE INTERPRETATION OF STATUTES IS NOT TOO HELPFUL. 50 AM. JURIS. 445 ( STATUTES). IN THE ABSENCE OF SOME EXPLANATION IN THE HISTORY OF THE LEGISLATION LEADING TO ENACTMENT OF SECTION 204, AT LEAST INDICATING THAT THE OMISSION OF THE PHRASE "OF THE NAVY," WAS MERELY TO SIMPLIFY AND REDUCE THE LANGUAGE IN THE REENACTED PROVISION, IT SEEMS PROPER TO CONSIDER WHETHER THE OMISSION HAS CREATED SUCH A CHANGE IN THE SECTION THAT THE INTERPRETATION OF THE EARLIER PROVISION IS NO LONGER NECESSARILY APPLICABLE. SOME ASSISTANCE MAY BE OBTAINED AS TO THE LEGISLATIVE INTENT IN THIS RESPECT FROM THE GENERAL CONTEXT OF SECTION 204, WHICH FOR THE FIRST TIME SEEMS TO ANCHOR THE RIGHT TO THE ADDITIONAL PAY SPECIFICALLY ON THE PERFORMANCE OF "HAZARDOUS DUTY" (SO DESCRIBED) UNDER COMPETENT ORDERS. VIEWING THE PROBLEM FROM THAT ANGLE, IT SEEMS CLEARLY FOR RECOGNITION THAT MEMBERS OTHERWISE MEETING THE CONDITIONS PRECEDENT FOR SUBMARINE DUTY PAY ARE CONFRONTED WITH HAZARDS AT LEAST AS GREAT WHILE SERVING ABOARD SUBMARINES OF A FOREIGN NATION AS WHILE SERVING ON BOARD SUBMARINES OF THE UNITES STATES NAVY. IN THE CIRCUMSTANCES, WE INCLINED TO THE VIEW THAT THE CHANGE OF LANGUAGE IN ENACTING SECTION 204, BY OMITTING THE QUALIFYING PHRASE "OF THE NAVY" WAS NOT MERELY TO REDUCE THE VERBIAGE, BUT WAS TO CREATE PARITY OF BENEFITS AMONG THE MEMBERS OF THE NAVY FOR SIMILAR SERVICE AND COMPARABLE HAZARDS, IRRESPECTIVE OF NATIONALITY OR CUSTODY OF THE SUBMARINE, IF THE MEMBERS PERFORM SERVICE UNDER COMPETENT ORDERS AS REQUIRED BY THE STATUTE.

ACCORDINGLY, IN THE RELATED CIRCUMSTANCES, PAYMENT OF SUBMARINE PAY IS AUTHORIZED TO THE EXTENT THAT IT MAY BE OTHERWISE PROPER.