B-20921, DECEMBER 1, 1941, 21 COMP. GEN. 499

B-20921: Dec 1, 1941

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WHO ARE ORDERED TO DUTY IN CONNECTION WITH THE CONVERSION AND FITTING OUT OF A VESSEL COMMISSIONED IN ORDINARY "AND ON BOARD WHEN COMMISSIONED" AND WHOSE ORDERS DO NOT INDICATE THAT SHORE DUTY IS TO BE PERFORMED ARE ON "SEA DUTY" WITHIN THE MEANING OF SECTION 6 OF THE ACT OF JUNE 10. ARE NOT ENTITLED TO RENTAL ALLOWANCE. EVEN THOUGH NO SUITABLE QUARTERS ARE AVAILABLE ON BOARD SHIP AND THE OFFICERS ARE NOT FURNISHED QUARTERS ON SHORE. 21 COMP. AS FOLLOWS: THERE IS FORWARDED HEREWITH A LETTER FROM THE COMMANDING OFFICER. YOUR DECISION IS REQUESTED AS TO WHETHER OFFICERS. ARE ENTITLED TO RENTAL ALLOWANCE FOR THE PERIOD INTERVENING BETWEEN THE DATE THE VESSEL IS COMMISSIONED IN ORDINARY AND THE DATE THE VESSEL IS PLACED IN FULL COMMISSION.

B-20921, DECEMBER 1, 1941, 21 COMP. GEN. 499

RENTAL ALLOWANCE - NAVY OFFICERS ATTACHED TO VESSELS COMMISSIONED IN ORDINARY NAVY OFFICERS, WITHOUT DEPENDENTS, WHO ARE ORDERED TO DUTY IN CONNECTION WITH THE CONVERSION AND FITTING OUT OF A VESSEL COMMISSIONED IN ORDINARY "AND ON BOARD WHEN COMMISSIONED" AND WHOSE ORDERS DO NOT INDICATE THAT SHORE DUTY IS TO BE PERFORMED ARE ON "SEA DUTY" WITHIN THE MEANING OF SECTION 6 OF THE ACT OF JUNE 10, 1922, DURING THE PERIOD OF SUCH CONVERSION AND FITTING OUT, AND, THEREFORE, ARE NOT ENTITLED TO RENTAL ALLOWANCE, EVEN THOUGH NO SUITABLE QUARTERS ARE AVAILABLE ON BOARD SHIP AND THE OFFICERS ARE NOT FURNISHED QUARTERS ON SHORE. 21 COMP. GEN. 60, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, DECEMBER 1, 1941:

THERE HAS BEEN CONSIDERED YOUR LETTER DATED SEPTEMBER 30, 1941, AS FOLLOWS:

THERE IS FORWARDED HEREWITH A LETTER FROM THE COMMANDING OFFICER, U.S.S. ZEILIN, DATED AUGUST 19, 1941, WITH ENDORSEMENTS THEREON, RELATIVE TO THE RENTAL ALLOWANCE STATUS OF BACHELOR OFFICERS ORDERED TO DUTY IN CONNECTION WITH THE CONVERSION AND FITTING OUT OF THAT VESSEL.

YOUR DECISION IS REQUESTED AS TO WHETHER OFFICERS, WITHOUT DEPENDENTS, ORDERED TO ACQUIRED VESSELS FOR DUTY IN CONNECTION WITH FITTING OUT, OR CONVERSION AND FITTING OUT, AND ON BOARD SUCH VESSELS WHEN PLACED IN COMMISSION, AS DISTINGUISHED FROM FULL COMMISSION, ARE ENTITLED TO RENTAL ALLOWANCE FOR THE PERIOD INTERVENING BETWEEN THE DATE THE VESSEL IS COMMISSIONED IN ORDINARY AND THE DATE THE VESSEL IS PLACED IN FULL COMMISSION, PROVIDED THE QUARTERS ABOARD SHIP ARE NOT HABITABLE AND THAT THE OFFICERS CONCERNED HAVE NOT BEEN ASSIGNED OR VOLUNTARILY OCCUPY GOVERNMENT OWNED QUARTERS OR QUARTERS HIRED FOR THEM AT GOVERNMENT EXPENSE.

ACCOMPANYING THE ABOVE LETTER IS A LETTER FROM THE COMMANDING OFFICER OF THE U.S.S. ZEILIN, DATED AUGUST 19, 1941, AS FOLLOWS: SUBJECT: RIGHT TO RENTAL ALLOWANCE IN CASE OF BACHELOR OFFICERS ORDERED

FOR DUTY IN CONNECTION WITH THE CONVERSION OF THE U.S.S. ZEILIN AND

ON BOARD THAT VESSEL WHEN PLACED IN COMMISSION. ENCLOSURE: (A) ORIGINAL ORDERS OF LIEUT. (JG.) MAC R. MCCULLOCH,

E-M, U.S.N.R.

1. DECISION IS REQUESTED AS TO WHETHER LIEUT. (JG.) MAC R. MCCULLOCH, E- M, U.S.N.R. IS ENTITLED TO BE CREDITED WITH RENTAL ALLOWANCE FROM OCTOBER 4, 1940, INCLUSIVE, UNTIL SUCH TIME AS QUARTERS BECOME AVAILABLE OR UNTIL THIS VESSEL IS PLACED IN FULL COMMISSION, WHICHEVER DATE IS FIRST.

2. THE ORDERS OF LIEUT. MCCULLOCH DIRECT HIM TO REPORT TO THE COMDT., 13TH NAVAL DISTRICT FOR ACTIVE DUTY IN CONNECTION WITH THE FITTING OUT OF THE U.S.S. ZEILIN AND ON BOARD THAT VESSEL WHEN COMMISSIONED. THE U.S.S. ZEILIN WAS PLACED IN COMMISSION IN ORDINARY, AUGUST 19, 1940.

3. DECISION OF THE COMPTROLLER GENERAL, B16703, DATED JULY 24, 1941, CLEARLY ESTABLISHES THE RIGHT OF AN OFFICER TO PAYMENT OF RENTAL ALLOWANCE FOR THE PERIOD INTERVENING BETWEEN THE DATE A VESSEL IS COMMISSIONED IN ORDINARY AND THE DATE THE VESSEL IS PLACED IN FULL COMMISSION. THE DECISION WAS RENDERED IN THE CASE OF AN OFFICER WHOSE ORDERS READ "FOR DUTY ON BOARD THAT VESSEL IN ORDINARY FOR CONVERSION AND ON BOARD WHEN PLACED IN FULL COMMISSION.'

4. IN THE CASE OF LIEUT. MCCULLOCH NOW UNDER CONSIDERATION, HIS ORDERS READ "FOR ACTIVE DUTY IN CONNECTION WITH THE FITTING OUT OF THE U.S.S. ZEILIN AND ON BOARD THAT VESSEL WHEN MISSIONED.'

5. DURING THE PERIOD PRIOR TO FULL COMMISSIONING, THE PERSONNEL ATTACHED TO THIS VESSEL ARE AND WILL BE ENGAGED PRIMARILY IN THE FITTING OUT OF THIS VESSEL AT THE TODD SEATTLE DRYDOCKS, NC., SEATTLE, WASHINGTON. IT IS BELIEVED THAT THE PERSONNEL ATTACHED TO THIS VESSEL ARE NOT AND WILL NOT BE ON SEA DUTY WITHIN THE MEANING OF SECTION 6 OF THE ACT OF JUNE 10, 1922.

6. LIEUTENANT MCCULLOCH IS A BACHELOR OFFICER WITHOUT DEPENDENTS. SUITABLE QUARTERS ARE AVAILABLE ON BOARD THIS VESSEL, IN BUILDINGS ASHORE, ON RECEIVING SHIPS, OR OTHER VESSELS IN THIS DISTRICT, FOR OFFICERS ATTACHED TO THIS VESSEL. THE CASE IN WHICH DECISION WAS RENDERED, JULY 24, 1941, AND THE CASE OF LIEUTENANT MCCULLOCH ARE PARALLEL, EXCEPT FOR THE WORD "FULL" AHEAD OF COMMISSION.

IN 21 COMP. GEN. 60, IT WAS HELD THAT UNDER THE CIRCUMSTANCES RELATED THEREIN A NAVY OFFICER, WITHOUT DEPENDENTS, WHO WAS ENGAGED UNDER ORDERS IN CONNECTION WITH THE CONVERSION AND FITTING OUT OF A VESSEL COMMISSIONED IN ORDINARY AND WHOSE ORDERS ASSIGNED HIM TO DUTY ON BOARD THAT VESSEL WHEN PLACED IN FULL COMMISSION, WAS NOT ON SEA DUTY DURING THE PERIOD PRIOR TO FULL COMMISSION OF THE VESSEL. THE FACTS OF THE SITUATION WERE NOT ENTIRELY CLEAR AND THE CONCLUSION REACHED IN THAT CASE WAS INFLUENCED BY THE FACT THAT THE ORDERS APPEARED TO REQUIRE TWO DUTIES; THAT IS, SHORE DUTY IN CONNECTION WITH THE CONVERSION AND FITTING OUT OF THE VESSEL AND SEA DUTY AFTER THE VESSEL WAS PLACED IN FULL COMMISSION. THE ORDERS THERE INSTRUCTED THE OFFICER TO REPORT TO THE SUPERVISOR OF SHIPBUILDING, ALABAMA DRYDOCK AND SHIPBUILDING CO., AND IT WAS PURSUANT TO THE THIRD INDORSEMENT TO SUCH ORDERS FROM THE ASSISTANT DISTRICT MATERIAL OFFICER, MOBILE, ALA., THAT HE REPORTED TO THE COMMANDING OFFICER OF THE U.S.S. KILAUEA FOR DUTY.

THE ORIGINAL ORDERS OF LT. ( JR.GR.) MAC R. MCCULLOCH, E-M, U.S.N.R., LISTED AS AN ENCLOSURE IN THE COMMANDING OFFICER'S LETTER QUOTED ABOVE, DID NOT ACCOMPANY YOUR REQUEST FOR DECISION BUT RECORDS IN THIS OFFICE DISCLOSE THE FOLLOWING ORDER DATED SEPTEMBER 28, 1940, TO LIEUTENANT MCCULLOCH FROM THE CHIEF OF THE BUREAU OF NAVIGATION: SUBJECT: ACTIVE DUTY WITH FULL PAY AND ALLOWANCES--- CHARGEABLE AGAINST

APPROPRIATION," PAY, SUBSISTENCE AND TRANSPORTATION OF NAVAL

PERSONNEL.' REFERENCES: (A) EXECUTIVE ORDER OF SEPTEMBER 8, 1939.

(B) NAVAL APPROPRIATION ACT FOR CURRENT FISCAL YEAR. ENCLOSURES: (A) AFFIDAVIT RE PENSION OR DISABILITY ALLOWANCE.

(B) N. NOV. 17

1. SUBJECT TO YOUR CONSENT AND TO THE EXECUTION OF ENCLOSURE (A), AND IN ACCORDANCE WITH THE AUTHORITY CONTAINED IN REFERENCES (A) AND (B), YOU WILL PROCEED FOR PHYSICAL EXAMINATION AS DIRECTED IN FIRST ENDORSEMENT HEREON. IF FOUND NOT PHYSICALLY QUALIFIED, YOU WILL PROCEED TO YOUR HOME AND CONSIDER FURTHER DIRECTIONS HEREIN CANCELLED. IN THIS EVENT, OR IF YOU DO NOT CONSENT TO THIS DUTY, RETURN THESE ORDERS TO THE BUREAU OF NAVIGATION, VIA THE COMMANDANT. IF FOUND PHYSICALLY QUALIFIED, YOU WILL PROCEED AND REPORT FOR ACTIVE DUTY AS INDICATED BELOW.

TO SEATTLE, WASHINGTON, AND TO THE COMMANDANT THIRTEENTH NAVAL DISTRICT, FOR ACTIVE DUTY IN CONNECTION WITH THE FITTING OUT OF THE U.S.S. ZEILIN AND ON BOARD WHEN COMMISSIONED.

INDORSEMENTS ON THE ORDER DISCLOSED THAT LIEUTENANT MCCULLOCH WAS EXAMINED AND FOUND PHYSICALLY QUALIFIED FOR ACTIVE DUTY AND THAT HE REPORTED TO THE COMMANDING OFFICER, U.S.S. ZEILIN AND WAS ASSIGNED TO DUTY ON OCTOBER 4, 1940. YOUR REQUEST FOR DECISION IS DATED A YEAR AFTER THE DATE OF THE OFFICER'S ORDERS AND IT IS INDICATED THAT THE U.S.S. ZEILIN WOULD PROBABLY BE PLACED IN FULL COMMISSION ON OR ABOUT SEPTEMBER 30, 1941 --- THE DATE OF YOUR REQUEST. APPARENTLY THE DUTY IN CONNECTION WITH THE CONVERSION OF THE VESSEL HAS NOW BEEN COMPLETED AND THE OFFICERS WHO PERFORMED SUCH DUTY HAVE BEEN PAID THEREFOR.

NAVY DIRECTORIES, NOVEMBER 1, 1940, AND APRIL 1, 1941, LIST THE U.S.S. ZEILIN (EX-PRESIDENT JACKSON) WITH ADDRESS AS SEATTLE.

THE ORDERS ISSUED TO LIEUTENANT MCCULLOCH DISCLOSE THAT HE WAS TO REPORT FOR ACTIVE DUTY IN CONNECTION WITH THE FITTING OUT OF THE VESSEL WHICH AT THAT TIME WAS COMMISSIONED IN ORDINARY "AND ON BOARD WHEN COMMISSIONED.' THIS LANGUAGE IS NOT CLEAR SINCE IT APPEARS THAT A VESSEL "IN COMMISSION IN ORDINARY" HAS A STATUS OF A VESSEL IN COMMISSION. TITLE 635, U.S. NAVY REGULATIONS, 1920. HOWEVER, IT IS EVIDENT THAT THE OFFICER WAS ATTACHED TO THE U.S.S. ZEILIN FOR DUTY AND IN VIEW OF THE CONCLUSION REACHED WHETHER OR NOT THE VESSEL WAS IN COMMISSION IS NOT MATERIAL.

SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY SECTION 2 OF THE ACT OF MAY 31, 1924, 43 STAT. 250, PROVIDES FOR PAYMENT OF RENTAL ALLOWANCE. THE FOURTH PARAGRAPH OF THE AMENDMENT IS AS FOLLOWS:

NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER, HAVING NO DEPENDENTS, WHILE HE IS ON FIELD OR SEA DUTY, NOR WHILE AN OFFICER WITH OR WITHOUT DEPENDENTS IS ASSIGNED AS QUARTERS AT HIS PERMANENT STATION THE NUMBER OF ROOMS PROVIDED BY LAW FOR AN OFFICER OF HIS RANK OR A LESS NUMBER OF ROOMS IN ANY PARTICULAR CASE WHEREIN, IN THE JUDGMENT OF COMPETENT SUPERIOR AUTHORITY OF THE SERVICE CONCERNED, A LESS NUMBER OF ROOMS WOULD BE ADEQUATE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS. SECTION 21 OF THE SAME ACT, 42 STAT. 633, PROVIDES---

THAT NOTHING IN THIS ACT SHALL OPERATE TO CHANGE IN ANY WAY EXISTING LAWS, OR REGULATIONS MADE IN PURSUANCE OF LAW, GOVERNING * * * ALLOWANCES IN KIND FOR QUARTERS, HEAT, AND LIGHT FOR OFFICERS * * *.

SECTION 1571, REVISED STATUTES, AS AMENDED BY THE ACT OF MAY 11, 1928, 45 STAT. 498, PROVIDES---

NO SERVICE SHALL BE REGARDED AS SEA SERVICE EXCEPT SUCH AS SHALL BE PERFORMED AT SEA, UNDER THE ORDERS OF A DEPARTMENT AND IN VESSELS EMPLOYED BY AUTHORITY OF LAW: PROVIDED, THAT WHEN OFFICERS ARE ASSIGNED TO AIRSHIPS ON DUTY REQUIRING THEM TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS THE SECRETARY OF THE NAVY SHALL DETERMINE AND CERTIFY WHETHER OR NOT, IN HIS JUDGMENT, THE SERVICE TO BE PERFORMED IS EQUIVALENT TO SEA DUTY. IF SUCH SERVICE IS THUS DETERMINED TO BE EQUIVALENT TO SEA DUTY, IT SHALL BE CONSIDERED TO BE ACTUAL SEA SERVICE ON SEA-GOING SHIPS FOR ALL PURPOSES.

"SEA DUTY" AS USED IN SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED, AND "SEA SERVICE" AND ,SEA DUTY" AS USED IN THE ABOVE QUOTED SECTION OF THE REVISED STATUTES ARE ONE AND THE SAME THING. THE TERMS ARE USED INTERCHANGEABLY IN THE 1928 AMENDMENT TO SECTION 1571, REVISED STATUTES. SUCH SECTION PRIOR TO ITS AMENDMENT WAS INTERPRETED BY THE COURTS ON NUMEROUS OCCASIONS. IN WYCKOFF V. UNITED STATES, 34 CT.1CLS. 288, IT WAS HELD THAT IN ORDER TO COME WITHIN THE PHRASE "AT SEA" IT IS NOT NECESSARY THAT THE VESSEL SHALL BE UPON THE HIGH SEAS. IT IS ENOUGH THAT SHE IS WATER-BORNE EVEN IF AT ANCHOR IN A BAY, OR PORT, OR HARBOR AND NOT IN CONDITION PRESENTLY TO GO TO SEA. THE SERVICE INVOLVED IN THIS CASE WAS PERFORMED ON A VESSEL NOT IN COMMISSION BUT FOR THE SHIP TO BE IN COMMISSION WAS NO MORE ESSENTIAL THAN THAT IT SHOULD BE EMPLOYED IN NAVIGATION. SEE ALSO UNITED STATES V. SEYMONDS, 120 U.S. 46; UNITED STATES V. BISHOP, 120 U.S. 51; UNITED STATES V. STRONG, 125 U.S. 656; UNITED STATES V. ENGARD, 196 U.S. 511; 19 COMP. GEN. 370. IN UNITED STATES V. BARNETTE, 165 U.S. 174, IT IS STATED THAT TO CONSTITUTE SEA SERVICE THREE THINGS, AND THREE ONLY, ARE NECESSARY. THE SERVICE MUST BE PERFORMED "AT SEA," "UNDER ORDERS OF A DEPARTMENT" AND "IN VESSELS EMPLOYED BY AUTHORITY OF LAW.' IT IS EVIDENT THAT THE DUTY PERFORMED BY LIEUTENANT MCCULLOCH WAS UNDER ORDERS OF A DEPARTMENT AND IT IS EQUALLY EVIDENT THAT SUCH DUTY WAS PERFORMED ON A VESSEL EMPLOYED BY AUTHORITY OF LAW.

THE ORDERS ADDRESSED TO LIEUTENANT MCCULLOCH DO NOT INDICATE THAT SHORE DUTY WAS TO BE PERFORMED. ALL THE DUTY APPEARS TO HAVE BEEN ON THE VESSEL TO WHICH HE WAS ATTACHED. IT IS REPORTED THAT NO SUITABLE QUARTERS WERE AVAILABLE ON BOARD THE VESSEL OR VESSELS IN THE VICINITY OR IN GOVERNMENT- OWNED BUILDINGS ASHORE FOR LIEUTENANT MCCULLOCH OR OTHER OFFICERS SIMILARLY SITUATED, BUT THE FACT THAT SUITABLE SPACE IS NOT AVAILABLE ON BOARD FOR QUARTERS IS NOT IN ITSELF DETERMINATIVE OF THE QUESTION AS TO WHETHER OR NOT CERTAIN SERVICE IS SEA DUTY WITHIN THE MEANING OF THE STATUTE. FOR SEVERAL YEARS PROVISION HAS BEEN MADE IN THE ANNUAL APPROPRIATION ACTS FOR THE NAVY DEPARTMENT FOR "HIRE OF QUARTERS FOR OFFICERS AND ENLISTED MEN ON SEA DUTY AT SUCH TIMES AS THEY MAY BE DEPRIVED OF THEIR QUARTERS ON BOARD SHIP DUE TO REPAIRS OR OTHER CONDITIONS WHICH MAY RENDER THEM UNINHABITABLE.' FOR EXAMPLE, SEE THE APPROPRIATION ACT MAKING APPROPRIATION FOR THE NAVY DEPARTMENT AND THE NAVAL SERVICE FOR THE FISCAL YEAR ENDING JUNE 30, 1941, UNDER THE HEADING " BUREAU OF SUPPLIES AND ACCOUNTS," 54 STAT. 274. THESE PROVISIONS CLEARLY RECOGNIZE THAT AN OFFICER MAY BE ON SEA DUTY WHILE THE VESSEL TO WHICH HE IS ATTACHED IS UNDERGOING REPAIRS OR IS OTHERWISE IN SUCH CONDITION AS NOT TO PERMIT THE OCCUPANCY OF QUARTERS ON BOARD.

IN VIEW OF THE FOREGOING IT IS CONCLUDED THAT LIEUTENANT MCCULLOCH, AS WELL AS OTHER OFFICERS PERFORMING DUTIES UNDER LIKE CONDITION WERE ON SEA DUTY DURING THE PERIOD THEY PERFORMED DUTY IN CONNECTION WITH THE CONVERSION AND FITTING OUT OF A VESSEL COMMISSIONED IN ORDINARY AND SUCH OFFICERS WITHOUT DEPENDENTS ARE NOT ENTITLED TO RENTAL ALLOWANCE. IF THE ASSUMPTIONS ON WHICH THE DECISION OF JULY 24, 1941, 21 COMP. GEN. 60, WAS BASED WERE NOT CORRECT AND THE FACTS IN THAT CASE WERE SIMILAR TO THE FACTS OF THIS CASE, THAT DECISION WILL NOT HEREAFTER BE FOLLOWED.