B-178815, APR 10, 1974, 53 COMP GEN 762

B-178815: Apr 10, 1974

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IS NOT. IS NOT SO RESTRICTIVE SO AS TO PROHIBIT PAYMENTS OF INCENTIVE PAY DURING PERIODS OF TRAINING AND REHABILITATION ON A CONTINUOUS BASIS IN THE CASE OF THE AUGMENT CREW OF NUCLEAR-POWERED ATTACK SUBMARINES. 1974: THIS DECISION IS IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION BY THE ACTING ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) CONCERNING WHETHER THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL MAY BE CHANGED TO PROVIDE FOR THE PAYMENT OF INCENTIVE PAY FOR HAZARDOUS DUTY TO CREW MEMBERS OF NUCLEAR SUBMARINES OTHER THAN BALLISTIC MISSILE SUBMARINES DURING PERIODS OF TRAINING AND REHABILITATION ASHORE FOR PERIODS IN EXCESS OF 15 DAYS. THE QUESTION TOGETHER WITH A DISCUSSION THEREOF IS CONTAINED IN THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 475.

B-178815, APR 10, 1974, 53 COMP GEN 762

PAY - SUBMARINE DUTY - ABSENCE PERIODS - TRAINING AND REHABILITATION WHILE THE 14-MAN AUGMENTATION TO THE CREW OF NUCLEAR-POWERED ATTACK SUBMARINES, WHICH ALLOWS MEMBERS OF THE SUBMARINE TO REMAIN IN PORT FOR PERIODS OF TRAINING AND REHABILITATION, IS NOT, STRICTLY SPEAKING, COMPARABLE TO THE TWO-CREW SYSTEM AS USED IN NUCLEAR-POWERED BALLISTIC MISSILE SUBMARINES, THE LEGISLATIVE HISTORY OF PUBLIC LAW 86-635, JULY 12, 1960, WHICH AMENDED THE LAW RELATING TO THE PAYMENT OF INCENTIVE PAY FOR PERIODS OF TRAINING AND REHABILITATION AWAY FROM THE SUBMARINE IN CASES OF OFF-SHIP CREW OF TWO-CREW NUCLEAR-POWERED SUBMARINES (37 U.S.C. 301(A)(2)), IS NOT SO RESTRICTIVE SO AS TO PROHIBIT PAYMENTS OF INCENTIVE PAY DURING PERIODS OF TRAINING AND REHABILITATION ON A CONTINUOUS BASIS IN THE CASE OF THE AUGMENT CREW OF NUCLEAR-POWERED ATTACK SUBMARINES, SO LONG AS SUCH TRAINING AND REHABILITATION PERIODS BEAR A REASONABLE RELATIONSHIP TO PERIODS OF DUTY ABOARD THE SUBMARINE AND NO SEVERE IMBALANCE OF ASSIGNMENTS OCCURS AMONG CREW MEMBERS.

TO THE SECRETARY OF DEFENSE, APRIL 10, 1974:

THIS DECISION IS IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION BY THE ACTING ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) CONCERNING WHETHER THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL MAY BE CHANGED TO PROVIDE FOR THE PAYMENT OF INCENTIVE PAY FOR HAZARDOUS DUTY TO CREW MEMBERS OF NUCLEAR SUBMARINES OTHER THAN BALLISTIC MISSILE SUBMARINES DURING PERIODS OF TRAINING AND REHABILITATION ASHORE FOR PERIODS IN EXCESS OF 15 DAYS. THE QUESTION TOGETHER WITH A DISCUSSION THEREOF IS CONTAINED IN THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 475.

THE COMMITTEE ACTION STATES THAT PUBLIC LAW 86-635, NOW CODIFIED AS 37 U.S.C. 301(A)(2), PROVIDES FOR ENTITLEMENT TO INCENTIVE PAY FOR HAZARDOUS DUTY TO CREW MEMBERS OF NUCLEAR-POWERED SUBMARINES DURING PERIODS OF TRAINING AND REHABILITATION AFTER ASSIGNMENT TO THE SUBMARINE. IT IS POINTED OUT THAT, TO DATE, THIS ENTITLEMENT HAS BEEN APPLIED ONLY IN THE CASE OF THE OFF-SHIP CREWS OF TWO-CREW POLARIS/POSEIDON NUCLEAR-POWERED SUBMARINES.

THE DISCUSSION IN THE COMMITTEE ACTION STATES THAT THE GROWING COMPLEXITY OF THE NUCLEAR SUBMARINE FORCE HAS RESULTED IN NEW AND UNFORESEEN MANNING REQUIREMENTS, AN EXAMPLE OF WHICH BEING A NEED FOR AN INCREASED ALLOWANCE OF 14 MEN ASSIGNED TO THE NUCLEAR ATTACK CLASS OF SUBMARINE (SSN) FOR THE PURPOSES OF PROVIDING INCREASED EQUIPMENT MAINTENANCE AND TO AUGMENT THE MANPOWER RESOURCES TO CARRY OUT THE OPERATIONAL REQUIREMENTS OF THAT CLASS OF SUBMARINE. IT IS INDICATED THAT THIS 14-MAN AUGMENTATION HAS PROVEN TO BE EXTREMELY IMPORTANT TO NUCLEAR ATTACK SUBMARINES BY THE FACT THAT THEIR AVAILABILITY HAS ALLOWED IMPROVED MAINTENANCE OF MANY SOPHISTICATED SHIPBOARD EQUIPMENTS AND SYSTEMS DURING IN-PORT PERIODS; HAS PERMITTED COMMANDING OFFICERS TO SEND CREW MEMBERS TO COURSES OF INSTRUCTION FOR ADDITIONAL TECHNICAL TRAINING, AN OPPORTUNITY WHICH WAS PREVIOUSLY LIMITED BY THE SHIP'S OPERATIONAL SCHEDULE OR THE MAINTENANCE WORK-LOAD; HAS ALLOWED A MORE FLEXIBLE AND REASONABLE IN-PORT WATCH ROTATION IN CONSONANCE WITH ESTABLISHED NAVY STANDARDS AND HAS RESULTED IN A MORE ADEQUATE REHABILITATION AND LEAVE POLICY WHICH WAS PREVIOUSLY UNATTAINABLE.

IT IS POINTED OUT IN THE DISCUSSION THAT UNDER THE PROVISIONS OF THE DEPARTMENT OF DEFENSE IMPLEMENTATION OF 37 U.S.C. 301(A)(2), AS EXPRESSED IN RULE 1, TABLE 2-2-2 OF THE DEPARTMENT OF DEFENSE PAY AND ALLOWANCES ENTITLEMENTS MANUAL, THERE IS A LOSS OF ENTITLEMENT TO SUBMARINE PAY FOR THE PERIOD OF TRAINING AND REHABILITATION ASHORE FOR PERSONNEL RELEASED FROM UNDERWAY DUTIES BY THE AUGMENT CREW WHEN THE TRAINING AND REHABILITATION PERIOD EXCEEDS 15 DAYS, WITH THE EXCEPTION OF MEMBERS ATTENDING APPROVED SUBMARINE TRAINING COURSES.

THE VIEW IS EXPRESSED IN THE COMMITTEE ACTION THAT A REVIEW OF THE LEGISLATIVE HISTORY OF PUBLIC LAW 86-635 INDICATES THAT THE FOREGOING RULE ESTABLISHED UNDER DEPARTMENT OF DEFENSE REGULATIONS MAY POSSIBLY BE BROADENED TO INCLUDE PERSONNEL PERFORMING TEMPORARY ADDITIONAL DUTY FOR TRAINING AND REHABILITATION ASHORE UNDER THE AUGMENTATION PROGRAM NOW BEING EMPLOYED IN THE MANNING OF NUCLEAR-POWERED ATTACK SUBMARINES. HOWEVER, DOUBT IS EXPRESSED IN THE DISCUSSION AS TO THE LEGALITY OF SUCH APPLICATION.

IT IS NOTED IN THE COMMITTEE ACTION THAT, AS EXPRESSED IN ITS LEGISLATIVE HISTORY, THE CLEAR INTENT OF PUBLIC LAW 86-635 WAS TO PAY INCENTIVE PAY TO THE OFF-CREW OF TWO-CREW NUCLEAR-POWERED SUBMARINES AS A MEANS OF ATTRACTING AND RETAINING PERSONNEL IN THE NUCLEAR SUBMARINE COMMUNITY.

THE DISCUSSION OF THE COMMITTEE ACTION STATES THAT WHILE THE NUCLEAR ATTACK SUBMARINES DO NOT HAVE TWO COMPLETE CREWS, THE CONCEPT OF AUTHORIZING 14 ADDITIONAL CREW MEMBERS PROVIDES, IN EFFECT, ONE AND A FRACTION CREWS FOR EACH NUCLEAR ATTACK SUBMARINE, WITH A SMALL PERCENTAGE OF THE CREW IN AN OFF-CREW TRAINING AND REHABILITATION STATUS WHILE THE SUBMARINE IS AT SEA.

IT IS ALSO NOTED IN THE COMMITTEE ACTION THAT THE TESTIMONY AND QUESTIONS OF SOME MEMBERS OF CONGRESS DURING HEARINGS ON H.R. 10500, WHICH BECAME PUBLIC LAW 86-635, INDICATED CONCERN OVER THE POSSIBILITY THAT THE NAVY MAY TAKE ADVANTAGE OF THE WORDING OF THE THEN PROPOSED LEGISLATION AS IT APPLIED TO THE TWO-CREW CONCEPT. HOWEVER, IT IS STATED IN THE DISCUSSION THAT IN THE 13 YEARS SINCE ENACTMENT OF PUBLIC LAW 86-635, THE TWO-CREW CONCEPT FOR SUBMARINE PAY ENTITLEMENT PURPOSES HAS BEEN LIMITED EXCLUSIVELY TO BALLISTIC MISSILE SUBMARINES AND THIS REQUEST FOR ADVANCE DECISION IS THE FIRST ATTEMPT TO EXTEND THE AUTHORITY TO ANOTHER CLASS OF NUCLEAR-POWERED SUBMARINE.

SECTION 204(A)(2) OF THE CAREER COMPENSATION ACT OF 1949, NOW CODIFIED IN 37 U.S.C. 301(A)(2), WAS AMENDED BY THE ACT OF JULY 12, 1960, PUBLIC LAW 86-635, 74 STAT, 469, TO AUTHORIZE THE CONTINUED PAYMENT OF SUBMARINE PAY DURING PERIODS OF TRAINING AND REHABILITATION AFTER ASSIGNMENT TO NUCLEAR- POWERED SUBMARINES. PRIOR TO THE ADVENT OF NUCLEAR-POWERED SUBMARINES AND ENACTMENT OF THE AMENDMENT, PAYMENT OF INCENTIVE PAY FOR DUTY ON A SUBMARINE ON A CONTINUOUS BASIS WAS AUTHORIZED ONLY FOR THOSE MEMBERS WHOSE DESIGNATED POST OF DUTY WAS THE SUBMARINE AND WHO WERE BERTHED AND SUBSISTED ABOARD THE SUBMARINE EXCEPT WHEN PERMITTED TO GO ON LEAVE OR FOR TEMPORARY ADDITIONAL DUTY ASHORE, WHICH IN NEITHER CASE MAY THE ABSENCE FROM THE SUBMARINE EXCEED 15 DAYS.

SUBSECTION (A)(2) OF 37 U.S.C. 301, AS AMENDED BY PUBLIC LAW 86-635, PROVIDES IN PART THAT A MEMBER IS ENTITLED TO INCENTIVE PAY FOR HAZARDOUS DUTY REQUIRED BY ORDERS, HAZARDOUS DUTY MEANING DUTY:

(2) AS DETERMINED BY THE SECRETARY CONCERNED, ON A SUBMARINE (INCLUDING, IN THE CASE OF NUCLEAR-POWERED SUBMARINES, PERIODS OF TRAINING AND REHABILITATION AFTER ASSIGNMENT THERETO), OR IN THE CASE OF PERSONNEL QUALIFIED IN SUBMARINES, AS A MEMBER OF A SUBMARINE OPERATIONAL COMMAND STAFF WHOSE DUTIES REQUIRE SERVING ON A SUBMARINE DURING UNDERWAY OPERATIONS -

WITH ADVENT OF THE NUCLEAR-POWERED BALLISTIC MISSILE SUBMARINES, WHICH WERE CAPABLE OF EXTENDED DEPLOYMENTS, A DETERMINATION WAS MADE BY THE NAVY THAT IT WAS NECESSARY TO MAN THESE SUBMARINES WITH TWO FULL CREWS. THIS WAS DEEMED NECESSARY BASED ON THE FINDING THAT THE ONLY REAL LIMITATION ON THE MISSION OF THE VESSEL WAS THE PHYSICAL AND MENTAL ENDURANCE OF THE CREW MEMBERS. IN ORDER TO ALLEVIATE THIS CONDITION, THE TWO-CREW CONCEPT WAS FORMULATED, THUS PERMITTING ONE CREW TO BE PHYSICALLY ON-BOARD THE SUBMARINE, WHILE THE OTHER CREW WAS PERFORMING TEMPORARY ADDITIONAL DUTY FOR TRAINING AND REHABILITATION ASHORE.

PRIOR TO THE ENACTMENT OF PUBLIC LAW 86-635, WHEN THIS PERIOD OF TRAINING AND REHABILITATION EXCEEDED 15 DAYS, THERE WAS A LOSS OF INCENTIVE PAY FOR THOSE MEMBERS ASHORE.

THEREFORE, WHILE THE CREW MEMBERS OF THE TWO-CREW NUCLEAR POWERED SUBMARINES ACTUALLY SPENT AS MUCH TIME AT SEA ON THE SUBMARINE AS CREW MEMBERS OF CONVENTIONAL SUBMARINES, NUCLEAR-POWERED SUBMARINE CREW MEMBERS SUFFERED A SUBSTANTIAL LOSS OF INCENTIVE PAY. AS A RESULT, IT BECAME DIFFICULT TO ATTRACT VOLUNTEERS FROM THE CONVENTIONAL SUBMARINE SERVICE TO THE NUCLEAR-POWERED SUBMARINE SERVICE AND PUBLIC LAW 86-635 WAS ENACTED WITH A VIEW TO ATTRACTING MORE MEMBERS TO VOLUNTEER FOR DUTY IN NUCLEAR SUBMARINES.

DURING HEARINGS ON H.R. 10500, WHICH BECAME PUBLIC LAW 86-635, THE TESTIMONY GENERALLY INDICATES THAT IF AUTHORIZED, THE INCENTIVE PAY WOULD ONLY BE APPLICABLE IN CASES WHERE THE TWO-CREW CONCEPT OR A MODIFIED VERSION THEREOF WOULD BE UTILIZED. SOME CONCERN WAS EXPRESSED BY CERTAIN MEMBERS OF CONGRESS THAT SUCH AUTHORIZATION WOULD BE USED TO AUTHORIZE TWO -CREWS FOR ALL SUBMARINES, CONVENTIONAL AS WELL AS NUCLEAR POWERED. HOWEVER, ASSURANCES THAT THIS WOULD NOT BE THE CASE WERE GIVEN BY THE DEPARTMENT OF DEFENSE SPOKESMAN AT THE HEARINGS. IT WAS INDICATED THAT INCENTIVE PAY IN SUCH CASES WOULD BE AUTHORIZED ONLY IN THE CASE OF NUCLEAR-POWERED SUBMARINES WHEN A TWO-CREW MANNING CONCEPT WOULD BE APPROPRIATE.

VARIOUS MATERIALS HAVE BEEN INFORMALLY OBTAINED FROM THE DEPARTMENT OF THE NAVY CONCERNING THE CONCEPT OF THE 14-MAN AUGMENTATION PROGRAM.

IN THIS CONNECTION, THE NAVY HAS DETERMINED THAT IN ORDER TO FACILITATE AND TO MAKE MORE EFFICIENT THE OPERATIONS OF THESE NUCLEAR POWERED ATTACK SUBMARINES AND TO PROVIDE A LESS DEMANDING SCHEDULE ON ITS CREWS, AN AUGMENTATION OF 14 ADDITIONAL BILLETS WOULD BE FILLED PERIODICALLY ON A ROTATIONAL BASIS BY MEMBERS OF THE ENLISTED CREW OF THE SUBMARINE AND WOULD THEREBY ENABLE 14 MEMBERS OF THE CREW TO REMAIN ASHORE FOR THE PURPOSES OF TRAINING AND REHABILITATION. GENERALLY, IT APPEARS THAT THIS TRAINING AND REHABILITATION CONSISTS OF SCHOOLING, CLERICAL, AND ADMINISTRATIVE DUTIES, IN-PORT WATCH STANDING AND PROVIDE GREATER OPPORTUNITIES FOR LEAVE.

THE VIEW HAS BEEN ADVANCED THAT THIS 14-MAN AUGMENTATION SHOULD BE CONSIDERED WITHIN THE TWO-CREW CONCEPT, THE ONLY DIFFERENCE BEING THE SIZE OF THE OFF-SHIP CREW. AS PREVIOUSLY MENTIONED, THIS AUGMENTATION ACTUALLY AMOUNTS TO ONE AND A FRACTION CREWS INSTEAD OF TWO FULL CREWS.

WE AGREE GENERALLY WITH THE VIEW EXPRESSED IN THE COMMITTEE ACTION THAT THE LANGUAGE OF THE LAW AND THE CONGRESSIONAL INTENT AS EXPRESSED IN THE HEARINGS AND THE COMMITTEE REPORTS IS SUFFICIENTLY BROAD TO PERMIT THE PAYMENT OF SUBMARINE INCENTIVE PAY AS AUTHORIZED UNDER THE PROVISIONS OF 37 U.S.C. 301(A)(2), TO THOSE MEMBERS PERFORMING TRAINING AND REHABILITATION AWAY FROM THEIR DUTY STATION ABOARD THE NUCLEAR POWERED ATTACK TYPE SUBMARINES. HOWEVER, IT IS OUR VIEW THAT THE REGULATIONS GOVERNING ASSIGNMENT ROTATION FOR SUCH PERIODS OF TRAINING AND REHABILITATION FOR MEMBERS OF NUCLEAR-POWERED ATTACK SUBMARINES SHOULD CONFORM AS NEARLY AS IS FEASIBLE TO THE PRESCRIBED FORMAT USED IN CONNECTION WITH THE TRAINING AND REHABILITATION OF THE OFF-CREW OF TWO- CREW NUCLEAR-POWERED SUBMARINES AND THAT ADEQUATE ADMINISTRATIVE SAFEGUARDS BE DEVELOPED BY THE NAVY TO INSURE THAT NO IMBALANCE OF ASSIGNMENTS TO PERIODS OF DUTY FOR TRAINING AND REHABILITATION OCCURS AMONG CREW MEMBERS.

IN THIS REGARD, IT MUST BE EMPHASIZED THAT ENTITLEMENT TO INCENTIVE PAY FOR THE PERIODS OF TRAINING AND REHABILITATION OF OFF-CREW MEMBERS OF NUCLEAR-POWERED ATTACK SUBMARINES IS NOT TO BE TREATED IN A MANNER SIMILAR TO THE ENTITLEMENT TO INCENTIVE PAY PRESCRIBED BY 37 U.S.C. 301(A)(2)(A) FOR MEMBERS ASSIGNED TO A SUBMARINE OPERATIONAL COMMAND STAFF, WHERE MINIMAL ON-BOARD TIME IS REQUIRED. IF MEMBERS ASSIGNED TO NUCLEAR-POWERED SUBMARINES, OTHER THAN TWO-CREW SUBMARINES, SHOULD PERFORM PERIODS OF TRAINING AND REHABILITATION WHICH DO NOT BEAR A REASONABLE RELATIONSHIP TO PERIODS OF DUTY ABOARD THE SUBMARINE AND TO THAT PERFORMED BY OTHER CREW MEMBERS, PAYMENT OF INCENTIVE PAY UNDER THE PROVISIONS OF 37 U.S.C. 301(A)(2) ON A CONTINUOUS BASIS WOULD NOT BE AUTHORIZED.

ACCORDINGLY, BASED ON OUR UNDERSTANDING OF THE CIRCUMSTANCES WHICH FORMED THE BASIS FOR THE SUBMISSION, THE QUESTION IS ANSWERED IN THE AFFIRMATION SUBJECT TO THE ABOVE-MENTIONED LIMITATIONS.