B-151075, AUG. 12, 1963

B-151075: Aug 12, 1963

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USN: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 26. WHILE YOU WERE SERVING ON TEMPORARY DUTY IN ARGENTINA "AS A LIAISON OFFICER TO THE ARGENTINE SUBMARINE FORCE.'. THE RECORDS SHOW THAT THE TWO SUBMARINES MENTIONED IN THE ORDERS WERE TRANSFERRED TO THE ARGENTINE NAVY. IT IS INDICATED IN THE "RESUME OF STATUS WHILE ON TEMPORARY DUTY. IT IS ALSO THERE INDICATED THAT AS OF NOVEMBER 23. IT IS STATED ELSEWHERE THAT SUCH FORCE WAS "AN AFLOAT OPERATIONAL SUBMARINE FORCE STAFF" AND THAT ALTHOUGH DURING THE 6-MONTH PERIOD OF TEMPORARY DUTY YOU WERE ASSIGNED TO THE OFFICE OF THE SENIOR U.S. YOU WERE STATIONED AT MAR DEL PLATA DURING THE ENTIRE PERIOD. NO SPECIFIC MENTION IS MADE OF THE SECOND SUBMARINE AFTER ITS ARRIVAL IN ARGENTINA.

B-151075, AUG. 12, 1963

TO LIEUTENANT COMMANDER STANLEY HECKER, USN:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 26, 1963, AND JUNE 26, 1963, CONCERNING YOUR CLAIM FOR SUBMARINE DUTY PAY FROM NOVEMBER 4, 1960, THROUGH MAY 1, 1961, A PERIOD OF APPROXIMATELY 6 MONTHS, WHILE YOU WERE SERVING ON TEMPORARY DUTY IN ARGENTINA "AS A LIAISON OFFICER TO THE ARGENTINE SUBMARINE FORCE.'

YOUR ORDERS OF JULY 12, 1960, AMENDING PRIOR ORDERS, PROVIDED AS FOLLOWS:

"MESSAGE ORDERS 191745Z FEB 1960 FURTHER MODIFIED: UPON DETACHMENT TEMDU AS OIC, USS LAMPREY (SS-372), REPORT BY MESSAGE SENIOR NAVAL ADVISOR, ARGENTINE NAVAL WAR COLLEGE, BUENOS AIRES, ARGENTINA, TEMDU ABOUT SIX MONTHS AS LIAISON OFFICER DURING TRAINING AND TRANSIT OF EX USS LAMPREY AND EX-USS MACABI TO ARGENTINA AND ON BOARD A SUBMARINE OF THE ARGENTINE NAVY, INSTEAD OF REPORTING BY MESSAGE COMSUHPAC FOR TEMDU ABOUT THREE MONTHS. COMPTEMDET; CARRY OUT REMAINDER BASIC ORDERS.'

SECOND ENDORSEMENT OF JULY 21, 1960, FURTHER MODIFYING YOUR ORDERS, DETACHED YOU FROM TEMPORARY DUTY AS OFFICER IN CHARGE OF THE U.S.S. LAMPREY (SS-372).

THE RECORDS SHOW THAT THE TWO SUBMARINES MENTIONED IN THE ORDERS WERE TRANSFERRED TO THE ARGENTINE NAVY. IT IS INDICATED IN THE "RESUME OF STATUS WHILE ON TEMPORARY DUTY," ONE OF THE ENCLOSURES WHICH ACCOMPANIED YOUR BASIC LETTER OF NOVEMBER 27, 1962, THAT YOU COMMENCED TEMPORARY DUTY AS A LIAISON OFFICER TO "ARGENTINE SUBMARINES" ON JULY 21, 1960; THAT WHEN THE TWO SUBMARINES DEPARTED FROM THE UNITED STATES YOU TRAVELED ON BOARD THE "ARA SANTIAGO DEL ESTERO (EX USS LAMPREY); " THAT WHEN THEY ARRIVED AT MAR DEL PLATA, ARGENTINA, ON NOVEMBER 3, 1960, YOU MOVED ASHORE AND TOOK UP RESIDENCE; AND THAT ON NOVEMBER 23, 1960, THE "ARASANTIAGO DEL ESTERO" DEPARTED FROM MAR DEL PLATA FOR PUERTO DEL BELGRANO, ARGENTINA, TO BE COMPLETED AT A NAVAL SHIPYARD. IT IS ALSO THERE INDICATED THAT AS OF NOVEMBER 23, 1960, YOUR STATUS CHANGED FROM LIAISON OFFICER TO THE "ARGENTINE SUBMARINES" TO LIAISON OFFICER TO THE STAFF OF THE ARGENTINE SUBMARINE FORCE COMMANDER AND ON BOARD A SUBMARINE OF THAT FORCE. IT IS STATED ELSEWHERE THAT SUCH FORCE WAS "AN AFLOAT OPERATIONAL SUBMARINE FORCE STAFF" AND THAT ALTHOUGH DURING THE 6-MONTH PERIOD OF TEMPORARY DUTY YOU WERE ASSIGNED TO THE OFFICE OF THE SENIOR U.S. NAVAL ADVISOR TO THE ARGENTINE NAVAL WAR COLLEGE, AT BUENOS AIRES, YOU WERE STATIONED AT MAR DEL PLATA DURING THE ENTIRE PERIOD. NO SPECIFIC MENTION IS MADE OF THE SECOND SUBMARINE AFTER ITS ARRIVAL IN ARGENTINA.

YOU STATE THAT DURING THE PERIOD IN QUESTION THE SUBMARINES WERE UTILIZED FOR BASIC SUBMARINE-TYPE TRAINING AND FAMILIARIZATION OF PERSONNEL; THAT OPERATIONS WERE DAILY, GETTING UNDERWAY AT ABOUT 0900 AND RETURNING TO PORT AT ABOUT 1600; THAT YOU WERE GENERALLY EMBARKED IN ONE OF THE SUBMARINES AT LEAST 2 OR 3 DAYS EACH OPERATING WEEK; AND THAT THE REMAINDER OF THE TIME WAS SPENT CARRYING OUT SUCH OTHER DUTIES AS EVALUATION OF TRAINING, ESTABLISHING OPERATING AND TRAINING PROGRAMS AND SCHEDULES, ETC. IT IS SHOWN THAT YOU SPENT APPROXIMATELY 3 DAYS AT PUERTO BELGRANO IN JANUARY 1961 AND THAT YOU SPENT A PART OF A DAY THERE IN FEBRUARY 1961, BUT THERE IS NO SHOWING, BY ENDORSEMENT ON YOUR ORDERS OR OTHERWISE, AS TO ANY SPECIFIC PART OF ANY PARTICULAR DAY SPENT BY YOU ON DUTY ON BOARD A SUBMARINE DURING THE PERIOD INVOLVED. YOU STATE FURTHER THAT, ALTHOUGH YOU WERE ASSIGNED TO AN AFLOAT BILLET, YOU WERE REQUIRED TO RESIDE ASHORE DUE TO THE FACT THAT PERSONNEL DO NOT RESIDE OR SUBSIST ON BOARD ARGENTINE SUBMARINES EXCEPT WHEN THEY ARE ACTUALLY UNDERWAY. APPEARS FROM THE EVIDENCE IN THE FILE THAT SUCH STATEMENT IS CORRECT AND THAT NO U.S. GOVERNMENT OR ARGENTINE GOVERNMENT QUARTERS WERE AVAILABLE FOR YOU OR FOR YOUR DEPENDENTS. IT FURTHER APPEARS THAT YOUR TEMPORARY DUTY WAS TERMINATED EFFECTIVE MAY 2, 1961.

SUBSECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 809, PROVIDED THAT, SUBJECT TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT, MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHOULD, IN ADDITION THERETO, BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY OF THE TYPES SPECIFIED (INCLUDING DUTY ON BOARD A SUBMARINE) REQUIRED BY COMPETENT ORDERS.

IT IS OUR VIEW THAT A MEMBER IS NOT ENTITLED TO SUBMARINE DUTY PAY ON A CONTINUOUS BASIS WHEN IT IS SHOWN THAT HIS SUBMARINE DUTY WAS ON AN INTERMITTENT BASIS AND THAT HIS PRIMARY DUTY WAS IN FACT ELSEWHERE. COMPARE 14 COMP. GEN. 635. ALSO, IT IS OUR VIEW THAT, IF SUBMARINE DUTY ON AN INTERMITTANT BASIS IS INTENDED, COMPETENT ORDERS SHOULD DEFINITELY PROVIDE FOR DUTY ON THAT BASIS. IN DECISION DATED SEPTEMBER 28, 1929, A- 24698, WE SUGGESTED TO THE SECRETARY OF THE NAVY THAT THE ENDORSEMENTS ON THE ORDERS UNDER WHICH OFFICERS ARE ASSIGNED TO DUTY ONBOARD SUBMARINES OF THE NAVY SHOULD CLEARLY SHOW THE NATURE OF THE DUTIES AND THE TIME DURING WHICH PERFORMED SO THAT IT CAN BE ASCERTAINED FROM THE ORDERS AND THE ENDORSEMENTS WHETHER THE OFFICERS, FOR THE PERIOD DURING WHICH INCREASED PAYMENTS ARE CLAIMED, WERE ACTUALLY SERVING ON DUTY ON BOARD SUBMARINES OF THE NAVY.

IN DECISION DATED JANUARY 12, 1937, A-44010, A-24698, OUR OFFICE ACCEPTED THE SUGGESTION OF THE SECRETARY OF THE NAVY THAT THE FORM OF ENDORSEMENTS ON THE BASIS SET FORTH IN THE DECISION OF SEPTEMBER 28, 1929, SHOULD APPLY IN CASES OF TEMPORARY SUBMARINE DUTY ONLY AND THAT COMPETENT ORDERS TO PERMANENT SUBMARINE DUTY PROPERLY ENDORSED TO THE EFFECT THAT THE OFFICER CONCERNED HAD REPORTED FOR DUTY WOULD CONTINUE TO BE CONSIDERED AS PRIMA FACIE EVIDENCE THAT SUBMARINE DUTY ACTUALLY WAS PERFORMED FROM THE REPORTING DATE UNTIL DATE OF DETACHMENT. THE PERTINENT REGULATIONS ARE NOW CONTAINED IN PARAGRAPH 044102, NAVY COMPTROLLER MANUAL.

WE CONSIDER THAT THE ORDERS UNDER WHICH YOU ARE PRESENTLY CLAIMING ARE PATENTLY AMBIGUOUS AND THAT IN THEMSELVES THEY PRESENT NO CLEAR BASIS FOR A DEFINITE DETERMINATION AS TO WHETHER, DURING THE PERIOD FROM NOVEMBER 4, 1960, THROUGH MAY 1, 1961, YOU WERE ASSIGNED TO THE OFFICE OF THE SENIOR U.S. NAVAL ADVISOR TO THE ARGENTINE NAVAL WAR COLLEGE, BUENOS AIRES, ARGENTINA, FOR TEMPORARY DUTY AS A LIAISON OFFICER DURING THE TRAINING AND TRANSIT OF THE SUBMARINES, OR AS TO WHETHER, DURING THAT PERIOD, YOUR WERE ATTACHED TO A SUBMARINE WITHIN THE INTENT AND MEANING OF THE STATUTORY PROVISIONS RELATING TO THE PAYMENT OF INCENTIVE PAY FOR HAZARDOUS DUTY ON BOARD A SUBMARINE. AS INDICATED ABOVE, THERE IS NO SHOWING, BY ENDORSEMENT ON YOUR ORDERS OR OTHERWISE, AS TO ANY SPECIFIC PART OF ANY PARTICULAR DAY SPENT BY YOU ON DUTY ON BOARD A SUBMARINE DURING THE PERIOD IN QUESTION.

IT IS SHOWN, HOWEVER, THAT DURING THAT PERIOD YOU WERE QUARTERED AND SUBSISTED ASHORE AND THAT MOST OF YOUR TIME WAS SPENT SERVING ASHORE. SUCH CIRCUMSTANCES, WE MUST REGARD YOUR TEMPORARY DUTY DURING SUCH PERIOD AS ESSENTIALLY SHORE BASED AND THAT THE ALLOWANCE OF PER DIEM TO YOU FOR THAT PERIOD WAS CORRECT. SINCE WE REGARD A PER DIEM STATUS AS INCOMPATIBLE WITH A STATUS OF DUTY ABOARD A VESSEL, WE FIND NO BASIS FOR THE PAYMENT OF BOTH PER DIEM AND SUBMARINE DUTY PAY FOR THE SAME PERIOD. YOU ARE ADVISED ACCORDINGLY.

THE 16 ENCLOSURES WHICH ACCOMPANIED YOUR LETTER OF NOVEMBER 27, 1962, ARE RETURNED HEREWITH.