B-147351, DECEMBER 7, 1961, 41 COMP. GEN. 392

B-147351, DECEMBER 7, 1961, 41 COMP. GEN. 392

PAY - ADDITIONAL - HELIUM-OXYGEN DIVES - DEFICIENCIES A NAVY REGULATION, EFFECTIVE AUGUST 17, 1961, WHICH PRECLUDES MEMBERS FROM QUALIFYING FOR HELIUM-OXYGEN DIVING PAY AFTER DIVING QUALIFICATIONS HAVE LAPSED MUST BE VIEWED AS SUPERSEDING THE REGULATIONS UNDER WHICH MEMBERS WERE GIVEN A 3-MONTH GRACE PERIOD TO MAKE UP DIVING DEFICIENCIES; THEREFORE, MEMBERS WHO WERE PREVENTED UNTIL SEPTEMBER 1961 FROM MAKING UP DIVING QUALIFICATIONS WHICH LAPSED ON JULY 31, 1961, MUST BE REGARDED AS MERELY HAVING AN INCHOATE RIGHT TO MAKE UP THEIR DIVING DEFICIENCIES UNTIL AUGUST 17, 1961, AND WHEN THE REGULATION WAS SUPERSEDED IT DEPRIVED THEM OF ANY FURTHER RIGHT SO THAT THE MEMBERS WHO FAILED TO MEET THE DIVING REQUIREMENTS FOR AUGUST AND WHO WERE NOT ENTITLED UNDER THE NEW REGULATIONS TO MAKE UP DIVING DEFICIENCIES IN SEPTEMBER MAY NOT BE CREDITED WITH DIVING PAY FOR THE PERIOD AUGUST 1 TO 16, 1961.

TO ENSIGN H. J. HENNINGER, DEPARTMENT OF THE NAVY, DECEMBER 7, 1961:

BY SECOND ENDORSEMENT DATED OCTOBER 4, 1961, THE COMPTROLLER OF THE NAVY FORWARDED HERE YOUR LETTER OF SEPTEMBER 21, 1961, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF CREDITING HELIUM-OXYGEN DIVING PAY TO VARIOUS MEMBERS OF THE U.S.S. SKYLARK (ASR-20) FOR THE PERIOD AUGUST 1 TO 16, 1961, UNDER THE CIRCUMSTANCES STATED BELOW. THE REQUEST FOR DECISION WAS ASSIGNED CONTROL NO. DO-N-613 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN YOUR LETTER IT IS STATED THAT HELIUM-OXYGEN DIVE QUALIFICATIONS FOR THE MEMBERS INVOLVED LAPSED ON JULY 31, 1961. SHIP OPERATIONAL COMMITMENTS AND THE UPKEEP PERIOD ARE SAID TO HAVE PREVENTED THE ACCOMPLISHMENT OF FURTHER HELIUM-OXYGEN DIVES UNTIL SEPTEMBER 5, 6 AND 7, 1961. UNDER THE PROVISIONS OF NAVY COMPTROLLER MANUAL, PARAGRAPH 1044117- 1B (2), THESE DIVES WOULD BE SUFFICIENT TO RETROACTIVELY CREDIT HELIUM- OXYGEN DIVING PAY FOR THE MONTH OF AUGUST 1961. SECNAV NOTICE 7220 DATED AUGUST 18, 1961, ESTABLISHED NEW RATES OF SPECIAL PAY FOR DIVING DUTY AND CANCELED CONFLICTING PROVISIONS OF THE NAVY COMPTROLLER MANUAL EFFECTIVE AUGUST 17, 1961. YOU SAY YOU CANNOT DETERMINE IF THE GRACE PERIOD PREVIOUSLY ALLOWED BY THE SUPERSEDED PROVISIONS OF THE NAVY COMPTROLLER MANUAL IS STILL APPLICABLE IN THIS CASE. THEREFORE, YOU REQUEST OUR DECISION ON WHETHER HELIUM-OXYGEN DIVING PAY IS AUTHORIZED RETROACTIVELY FOR THE PERIOD AUGUST 1 TO 16, 1961, BASED UPON THE DIVES PERFORMED ON SEPTEMBER 5, 6 AND 7, 1961.

SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 235 (A), AND IN EFFECT UP TO AUGUST 17, 1961, AUTHORIZES, SUBJECT TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT, THE PAYMENT OF INCENTIVE PAY FOR THE PERFORMANCE OF CERTAIN SPECIFIED HAZARDOUS DUTIES, INCLUDING (CLAUSE 12) "DUTY INVOLVING THE USE OF HELIUM-OXYGEN FOR A BREATHING MIXTURE IN THE EXECUTION OF DEEP-SEA DIVING.' THE ACT OF AUGUST 17, 1961, PUBLIC LAW 87-145, 75 STAT. 382, STRUCK OUT CLAUSE 12 OF SECTION 204 (A) AND AMENDED SECTION 205, 37 U.S.C. 236, TO PROVIDE A DIFFERENT BASIS FOR THE PAYMENT OF SPECIAL PAY FOR DIVING DUTY. REGULATIONS PROMULGATED PURSUANT TO THE AUTHORITY OF SECTIONS 204 AND 501 (D), 37 U.S.C. 235 AND 37 U.S.C. 301, RESPECTIVELY, OF THE CAREER COMPENSATION ACT OF 1949, ARE CONTAINED IN EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950, AS AMENDED BY EXECUTIVE ORDER NO. 10618, JUNE 28, 1955.

THE ABOVE EXECUTIVE ORDER, AS AMENDED, DOES NOT PRESCRIBE ANY SPECIFIC DIVING REQUIREMENTS FOR ENTITLEMENT TO THIS INCENTIVE PAY BUT ONLY REQUIRES PERFORMANCE OF HELIUM-OXYGEN DIVING DUTY. DIVING REQUIREMENTS FOR SUCH PAY ARE CONTAINED IN PARAGRAPH 1044117, NAVY COMPTROLLER MANUAL.

UNDER THESE REGULATIONS, ONE HELIUM-OXYGEN DIVE EACH 3-MONTH PERIOD IS THE MINIMUM NECESSARY FOR EACH MAN TO MAINTAIN HIS PROFICIENCY AND TO SATISFY THE REQUIREMENTS FOR SUCH PAY. ALSO, THE REGULATIONS PROVIDE THAT WHEN MILITARY OPERATIONS PREVENT A MEMBER FROM MEETING DIVING REQUIREMENTS DURING ANY 3 CONSECUTIVE CALENDAR MONTHS, AS IN THE PRESENT CASE, THE MEMBER MAY MAKE UP SUCH DEFICIENCY BY PERFORMING TWO DIVES IN THE NEXT 3 CALENDAR MONTHS AND BE CREDITED RETROACTIVELY WITH HELIUM-OXYGEN DIVING PAY.

THE MEMBERS ATTACHED TO THE SKYLARK DID NOT MEET THE HELIUM-OXYGEN DIVING REQUIREMENTS FOR AUGUST 1961, AND, THEREFORE, THEIR QUALIFICATIONS LAPSED ON JULY 31, 1961, BUT THEY WERE ENTITLED TO RECEIVE INCENTIVE PAY (HELIUM- OXYGEN DIVING) FOR AUGUST UNDER THE APPLICABLE LAW AND REGULATIONS IN EFFECT UP TO AUGUST 16, 1961, BY MAKING UP THE HELIUM-OXYGEN DIVING REQUIREMENTS DURING THE MONTHS OF AUGUST, SEPTEMBER OR OCTOBER.

PARAGRAPH 4 (B) (4), SECNAV NOTICE 7220, DATED AUGUST 18, 1961, WHICH, EFFECTIVE AUGUST 17, 1961, SUPERSEDED CONFLICTING PROVISIONS OF THE NAVY COMPTROLLER MANUAL, PROVIDES AS FOLLOWS:

(4) LAPSED QUALIFICATIONS. NO MEMBER SHALL BE ENTITLED TO RECEIVE SPECIAL PAY FOR THE PERFORMANCE OF DIVING DUTY AFTER DIVING QUALIFICATIONS HAVE LAPSED. UPON REQUALIFICATION, PAYMENTS MAY NOT BE MADE FOR THE PERIOD OF LAPSED QUALIFICATION. COMMANDING OFFICERS SHALL BE RESPONSIBLE FOR INSURING THAT DIVERS ARE AFFORDED AN OPPORTUNITY TO MAINTAIN THEIR QUALIFICATION WITHOUT LAPSE.

THE PURPOSE OF THIS PROVISION APPARENTLY WAS TO ELIMINATE ANY FURTHER RIGHT TO QUALIFY RETROACTIVELY FOR DIVING PAY AFTER DIVING QUALIFICATIONS HAVE LAPSED. HENCE, IT MUST BE VIEWED AS HAVING SUPERSEDED THE PROVISIONS OF PARAGRAPH 1044117-1B (2) OF THE NAVY COMPTROLLER MANUAL UNDER WHICH MEMBERS WERE PERMITTED TO QUALIFY RETROACTIVELY AS THERE PROVIDED FOR A PERIOD AFTER QUALIFICATION HAD LAPSED.

THE EFFECT OF AN ACT AMENDING A SPECIFIC SECTION OF A FORMER ACT, IN THE ABSENCE OF A SAVINGS CLAUSE, IS TO STRIKE THE FORMER SECTION FROM THE LAW, OBLITERATE IT ENTIRELY, AND SUBSTITUTE THE NEW SECTION IN ITS PLACE. ROOKLEDGE V. GARWOOD, 65 N.W.2D 785. THE SAME PRINCIPLE, OF COURSE, APPLIES TO THE AMENDMENT OF AN ADMINISTRATIVE REGULATION. ALSO, IT IS A WELL-SETTLED PRINCIPLE OF LAW THAT THERE IS NO VESTED RIGHT IN AN EXISTING LAW OR REGULATION WHICH PRECLUDES REPEAL OR RESCISSION, AND THE UNQUALIFIED REPEAL OF A STATUTE, OR RESCISSION OF A REGULATION, CONFERRING CIVIL RIGHTS OPERATES TO DEPRIVE THE CITIZEN OF ALL SUCH RIGHTS WHICH AT THE TIME OF REPEAL ARE INCHOATE, INCOMPLETE, AND UNPERFECTED, OR WHICH HAVE NOT ACCRUED OR BECOME VESTED. 50 AM. JUR., STATUTES, SECTION 526.

WHILE THE SHIP OPERATION SCHEDULE FOR THE U.S.S. SKYLARK (ARS-20) SHOWS THAT IT WAS OFFICIALLY DETERMINED TO CONDUCT DIVING OPERATIONS IN SEPTEMBER TO AFFORD DIVERS AN OPPORTUNITY TO FULFILL THEIR DIVING REQUIREMENTS, THE SCHEDULE COULD HAVE BEEN CHANGED OR REVOKED AT ANY TIME PRIOR TO PERFORMANCE OF DIVING OPERATIONS AND THE MEMBERS WOULD HAVE HAD NO RIGHT TO REQUIRE THAT THE SCHEDULED DIVING DUTY BE CARRIED OUT. HENCE, IT APPEARS THAT THE MEMBERS MERELY HAD AN INCHOATE RIGHT PRIOR TO AUGUST 17, 1961, TO MAKE UP THE DIVING REQUIREMENTS AND WHEN THE REGULATION PERMITTING THEM TO QUALIFY WAS SUPERSEDED IT DEPRIVED THEM OF ANY FURTHER RIGHT IN THAT RESPECT.

ACCORDINGLY, SINCE THE DIVING REQUIREMENTS WERE NOT MET FOR AUGUST AND SINCE THE MEMBERS WERE NOT ENTITLED UNDER THE PROVISIONS OF THE LAW AND REGULATIONS WHICH BECAME EFFECTIVE ON AUGUST 17, 1961, TO MAKE UP THE DIVING REQUIREMENTS IN SEPTEMBER WHEN THE DIVING DUTY WAS PERFORMED, THERE IS NO AUTHORITY FOR CREDITING DIVING PAY TO SUCH MEMBERS FOR THE PERIOD AUGUST 1 TO 16, 1961.