B-142475, MAY 16, 1960

B-142475, MAY 16, 1960

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF MARCH 31, 1960, FROM THE ASSISTANT SECRETARY OF THE NAVY (PERSONNEL AND RESERVE FORCES) REQUESTING DECISION (1) WHETHER AN ENCLOSED PROPOSED CHANGE TO EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950, WOULD AUTHORIZE PAYMENT OF THE INCENTIVE PAY AUTHORIZED FOR DUTY ON BOARD A SUBMARINE, IN THE CASE OF DUTY ABOARD A "SELF- PROPELLED" SUBMERSIBLE SUCH AS THE BATHYSCAPH TRIESTE, AND (2) IF SO, WHETHER ENTITLEMENT WOULD EXIST FOR THE PERIOD THE MEMBERS CONTINUE TO BE ASSIGNED AS OPERATORS TO SUCH VESSELS. THE REQUEST FOR DECISION HAS BEEN ASSIGNED SUBMISSION NUMBER SS-N-490 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 235 (A), PROVIDES IN PERTINENT PART THAT:

"SUBJECT TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT, MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL, IN ADDITION THERETO, BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY REQUIRED BY COMPETENT ORDERS. THE FOLLOWING DUTIES SHALL CONSTITUTE HAZARDOUS DUTIES: * * *

"/2) DUTY ON BOARD A SUBMARINE, INCLUDING SUBMARINES UNDER CONSTRUCTION FROM THE TIME BUILDERS' TRIALS COMMENCE; * * *"

EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950, WAS ISSUED PURSUANT TO THE AUTHORITY GIVEN BY THE ABOVE SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949. THE PROPOSED AMENDMENT WHICH WOULD ADD THE UNDERSCORED LANGUAGE, TO SECTION 6 OF THE EXECUTIVE ORDER IS AS FOLLOWS:

"MEMBERS WHO, PURSUANT TO COMPETENT ORDERS, ARE ASSIGNED TO A SUBMARINE WHICH IS IN AN ACTIVE STATUS, INCLUDING A SUBMARINE UNDER CONSTRUCTION FROM THE TIME BUILDERS' TRIALS COMMENCE, OR MEMBERS WHO, PURSUANT TO COMPETENT ORDERS, ARE ASSIGNED AS OPERATORS OF AN OPERATIONAL SELF- PROPELLED SUBMERSIBLE, SHALL BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF SUBMARINE DUTY. THE TERM "BUILDERS' TRIALS" SHALL BE CONSTRUED TO MEAN TRIALS CONDUCTED UNDERWAY OR IN FREE ROUTE.'

AS ITS NAME IMPLIES A BATHYSCAPH (BATHYS, DEEP; SKAPHOS, BOWL, SKIFF) IS A VESSEL CAPABLE OF SUBMERGING TO GREAT DEPTHS--- A SUBMERSION OF SOME SEVEN MILES HAS BEEN ACCOMPLISHED BY THE TRIESTE--- AND WE UNDERSTAND THAT IT HAS A PROPULSION SYSTEM WHICH ENABLES IT TO MANEUVER HORIZONTALLY WHEN SUBMERGED AT A SPEED OF ABOUT TWO KNOTS PER HOUR. THUS, AS STATED IN THE LETTER OF MARCH 31, 1960, A BATHYSCAPH IS A "SUBMARINE" IN THE LITERAL SENSE OF THAT TERM. IT DOES NOT FOLLOW, HOWEVER, THAT DUTY ABROAD A BATHYSCAPH IS "THE DUTY ON BOARD A SUBMARINE," CONTEMPLATED BY SECTION 204 (A) FOR WHICH INCENTIVE PAY ACCRUES.

WHEN USED TO DESCRIBE A VESSEL OF THE UNITED STATES NAVY, THE TERM "SUBMARINE" ORDINARILY IS UNDERSTOOD AS HAVING REFERENCE TO AN ARMED COMBAT SHIP CAPABLE OF OPERATING FOR CONSIDERABLE PERIODS OF TIME ON THE SURFACE AND SUBMERGED, AS A SELF-CONTAINED INDEPENDENT UNIT OF THE FLEET. THE HAZARDS, MENTAL AND PHYSICAL, BOTH ACTUAL AND POTENTIAL, AND THE UNUSUAL COMMAND AND CREW RESPONSIBILITIES INCIDENT TO THE PERFORMANCE OF DUTY ON BOARD SUCH A VESSEL ARE READILY APPARENT AND WOULD APPEAR TO BE UNIQUE IN THE NAVY. WE BELIEVE IT IS THE HAZARDS OF DUTY ON BOARD SUCH A VESSEL THAT CONGRESS HAD IN MIND WHEN IT AUTHORIZED THE PAYMENT OF INCENTIVE PAY FOR DUTY ON BOARD A SUBMARINE.

THE BATHYSCAPH DOES NOT APPEAR TO BE A COMBAT VESSEL, ITS PRINCIPAL PURPOSE BEING THE STUDY OF OCEANOGRAPHY. ALTHOUGH IT IS A SUBMERSIBLE VESSEL AND IS CAPABLE OF A LIMITED DEGREE OF MANEUVERABILITY WHILE SUBMERGED, IT APPARENTLY IS NOT A TRUE SELF-PROPELLED VESSEL AND IS WHOLLY INCAPABLE OF SELF-CONTAINED INDEPENDENT OPERATION. THE BATHYSCAPH APPEARS, IN FACT, TO BE A HIGHLY SPECIALIZED DEEPSEA DIVING APPARATUS AND DUTY ABOARD A BATHYSCAPH APPEARS TO HAVE FEATURES SIMILAR TO SOME OF THOSE OF DIVING DUTY.

IN THE CIRCUMSTANCES WE WOULD NOT BE JUSTIFIED IN CONCLUDING THAT DUTY ON BOARD A BATHYSCAPH IS DUTY ON BOARD A SUBMARINE WITHIN THE CONTEMPLATION OF THE SUBMARINE-DUTY INCENTIVE PAY PROVISIONS OF SECTION 204. YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE MAKING AN ANSWER TO THE SECOND QUESTION UNNECESSARY.