B-158150, JAN. 11, 1966, 45 COMP. GEN. 395

B-158150, JAN. 11, 1966, 45 COMP. GEN. 395

PAY - SUBMARINE - THIRTY-FIRST DAY OF THE MONTH THE MONTHLY INCENTIVE PAY AUTHORIZED IN 37 U.S.C. 301 FOR SUBMARINE DUTY BEING A PERCENTAGE INCREASE OF THE ANNUAL PAY OF MEMBERS OF THE UNIFORMED SERVICES IS WITHIN THE MEANING OF THE ACT OF JUNE 30, 1906, 5 U.S.C. 84, PRESCRIBING THAT IN COMPUTING COMPENSATION FOR A FRACTIONAL PART OF A MONTH, EACH MONTH SHALL CONSIST OF 30 DAYS, EXCLUDING THE THIRTY-FIRST OF ANY CALENDAR MONTH AND TREATING FEBRUARY AS HAVING 30 DAYS; THEREFORE, AN OFFICER IN AN ACTIVE DUTY PAY STATUS FOR A PERIOD IN EXCESS OF 30 DAYS WHO PERFORMS SUBMARINE DUTY ON THE THIRTY-FIRST OF THE MONTH MAY NOT BE PAID SUBMARINE PAY FOR THAT DAY PURSUANT TO 5 U.S.C. 84, AND THE OFFICER SERVING ON EXTENDED ACTIVE DUTY IS NOT WITHIN THE PURVIEW OF 37 U.S.C. 1004, PROVIDING FOR ENTITLEMENT TO PAY AND ALLOWANCES FOR EACH DAY, INCLUDING THE THIRTY-FIRST DAY OF THE MONTH, WHEN A MEMBER SERVES A CONTINUOUS PERIOD OF LESS THAN 1 MONTH.

TO LIEUTENANT COMMANDER VINCENT J. ARGIRO, JANUARY 11, 1966:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 19, 1965, REQUESTING REVIEW OF OUR CLAIMS DIVISION SETTLEMENT OF NOVEMBER 15, 1965, WHICH DISALLOWED YOUR CLAIM FOR SUBMARINE PAY FOR AUGUST 31, 1965, WHILE YOU WERE ON BOARD THE U.S.S. TULIBEE (SSN-597). PAYMENT WAS DENIED SINCE YOU WERE IN AN ACTIVE DUTY PAY STATUS FOR A PERIOD IN EXCESS OF 30 DAYS.

BY TRAVEL ORDER NO. T-83 OF AUGUST 24, 1965, YOU WERE DIRECTED TO REPORT TO GROTON, CONNECTICUT, ON OR BEFORE AUGUST 28, 1965, FOR TEMPORARY ADDITIONAL DUTY IN CONNECTION WITH BOARD OF INSPECTION AND SURVEY DUTIES AND ON BOARD SUCH NAVAL SHIPS AS MIGHT BE NECESSARY. IT APPEARS FROM YOUR CLAIM THAT FROM AUGUST 28 TO 30, 1965, INCLUSIVE, YOU WERE ATTACHED TO THE U.S.S. BENJAMIN FRANKLIN (SSBN-640) FOR SUBMARINE DUTY AND THAT ON AUGUST 31 AND SEPTEMBER 1, 1965, YOU PERFORMED ADDITIONAL SUBMARINE DUTY WHILE ATTACHED TO THE U.S.S. TULIBEE (SSN-597). PAYMENT FOR THE THIRTY-FIRST OF AUGUST HAS BEEN REFUSED BASED ON THE PROVISIONS OF SECTION 6 OF THE ACT OF JUNE 30, 1906, CH. 3914, 34 STAT. 763, AS AMENDED, 5 U.S.C. 84.

THE PERTINENT PROVISIONS OF 5 U.S.C. 84 READ AS FOLLOWS:

WHERE THE COMPENSATION OF ANY PERSON IN THE SERVICE OF THE UNITED STATES * * * IS ANNUAL OR MONTHLY THE FOLLOWING RULES FOR DIVISION OF TIME AND COMPUTATION OF PAY FOR SERVICES RENDERED ARE ESTABLISHED: ANNUAL COMPENSATION SHALL BE DIVIDED INTO TWELVE EQUAL INSTALLMENTS, ONE OF WHICH SHALL BE THE PAY FOR EACH CALENDAR MONTH; AND IN MAKING PAYMENTS FOR A FRACTIONAL PART OF A MONTH ONE THIRTIETH OF ONE OF SUCH INSTALLMENTS, OR OF A MONTHLY COMPENSATION, SHALL BE THE DAILY RATE OF PAY. FOR THE PURPOSE OF COMPUTING SUCH COMPENSATION AND FOR COMPUTING TIME FOR SERVICES RENDERED DURING A FRACTIONAL PART OF A MONTH IN CONNECTION WITH ANNUAL OR MONTHLY COMPENSATION, EACH AND EVERY MONTH SHALL BE HELD TO CONSIST OF THIRTY DAYS, WITHOUT REGARD TO THE ACTUAL NUMBER OF DAYS IN ANY CALENDAR MONTH, THUS EXCLUDING THE 31ST OF ANY CALENDAR MONTH FROM THE COMPUTATION AND TREATING FEBRUARY AS IF IT ACTUALLY HAD THIRTY DAYS. * * *

HOWEVER, NOTWITHSTANDING, THE FOREGOING PROVISIONS IT APPEARS TO BE YOUR BELIEF THAT PAYMENT FOR SUBMARINE DUTY SHOULD BE MADE TO YOU FOR THE THIRTY-FIRST DAY OF THE MONTH SINCE YOU WERE NOT ATTACHED TO A SUBMARINE FOR MORE THAN 30 DAYS.

IN OUR DECISION OF AUGUST 16, 1944, 24 COMP. GEN. 131, WE CONSIDERED VARIOUS QUESTIONS RELATIVE TO THE COMPUTATION OF SUBMARINE PAY FOR PERIODS OF SUBMARINE DUTY WHICH INCLUDED THE THIRTY-FIRST DAY OF THE MONTH. UNDER THE LAWS IN EFFECT AT THAT TIME MEMBERS OF THE NAVY ON DUTY ON BOARD A SUBMARINE OF THE NAVY WERE ENTITLED TO RECEIVE "50 PERCENTUM ADDITIONAL OF THE PAY FOR THEIR RANK OR RATING AND SERVICE" AS PROVIDED BY LAW. IT WAS POINTED OUT THAT THE PAY OF MEMBERS OF THE ARMED FORCES WAS ON AN ANNUAL BASIS UNDER THE LAWS THEN IN EFFECT AND HENCE THE PERCENTUM INCREASE FOR SUBMARINE DUTY ALSO WAS ON AN ANNUAL BASIS. FOR THAT REASON, THE PROVISIONS OF THE 1906 ACT WERE APPLICABLE TO SUCH PAY. CONSEQUENTLY, WE HELD THAT SUBMARINE PAY DID NOT ACCRUE FOR DUTY ON THE THIRTY-FIRST DAY OF THE CALENDAR MONTH EVEN THOUGH THE PERIOD OF SUBMARINE DUTY WAS FOR LESS THAN 30 DAYS. ON THAT BASIS WE SAID THAT A MEMBER WHO SERVED ON TEMPORARY DUTY ABOARD A SUBMARINE ON THE THIRTIETH AND THIRTY-FIRST DAY OF THE MONTH WAS ENTITLED TO SUBMARINE PAY ONLY FOR 1 DAY.

THE APPLICABLE LAW FOR HAZARDOUS DUTY PAY FOR SUBMARINE DUTY IS NOW FOUND IN 37 U.S.C. 301. THIS LAW READS IN PERTINENT PART AS FOLLOWS:

(A) SUBJECT TO REGULATIONS PRESCRIBED BY THE PRESIDENT, A MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY IS ALSO ENTITLED TO INCENTIVE PAY, IN THE AMOUNT SET FORTH IN SUBSECTION (B) OR (C) OF THIS SECTION, FOR THE PERFORMANCE OF HAZARDOUS DUTY REQUIRED BY ORDERS. FOR THE PURPOSES OF THIS SUBSECTION,"HAZARDOUS DUTY" MEANS DUTY---

(2) AS DETERMINED BY THE SECRETARY CONCERNED, ON A SUBMARINE * * *.

(B) FOR THE PERFORMANCE OF THE HAZARDOUS DUTY DESCRIBED IN CLAUSE (1), (2), OR (3) OF SUBSECTION (A) OF THIS SECTION, A MEMBER IS ENTITLED TO MONTHLY INCENTIVE PAY * * *.

THUS, IT WILL BE SEEN THAT INCENTIVE PAY FOR SUBMARINE DUTY, AS WELL AS FOR THE OTHER TYPES OF HAZARDOUS DUTY SET FORTH IN SECTION 301, IS AUTHORIZED AS MONTHLY PAY WITHIN THE MEANING OF THE 1906 ACT AS AMENDED. 32 COMP. GEN. 55. THEREFORE, IN THE CASE OF MEMBERS WHO ARE SERVING ON EXTENDED ACTIVE DUTY, THE RULES SET FORTH IN 24 COMP. GEN. 131 WITH RESPECT TO EXCLUDING THE THIRTY-FIRST DAY OF THE MONTH IN THE COMPUTATION OF PAY FOR SUBMARINE DUTY ARE ALSO APPLICABLE IN COMPUTING PAY UNDER 37 U.S.C. 301 FOR SUCH DUTY.

WHILE 37 U.S.C. 1004 PROVIDES THAT A MEMBER WHO IS ENTITLED TO PAY AND ALLOWANCES FOR A CONTINUOUS PERIOD OF LESS THAN 1 MONTH IS ENTITLED TO HIS PAY AND ALLOWANCES FOR EACH DAY OF THAT PERIOD AND THE THIRTY FIRST DAY OF THE MONTH MAY NOT BE EXCLUDED IN THE COMPUTATION, SUCH PROVISIONS ARE NOT APPLICABLE TO A MEMBER SERVING ON EXTENDED ACTIVE DUTY.

ACCORDINGLY, THE ACTION OF OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM IS SUSTAINED.