B-24335, B-24553, APRIL 17, 1942, 21 COMP. GEN. 932

B-24335,B-24553: Apr 17, 1942

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NAVY ENLISTED MEN ASSIGNED TO DUTY ABOARD A SUBMARINE AND ALSO TO THE DUTY OF DIVING ARE ENTITLED TO THE PERCENTUM INCREASE ON THEIR ADDITIONAL SUBMARINE/DUTY PAY BUT NOT UPON THEIR ADDITIONAL PAY FOR DIVING. WHILE THE INCREASE AUTHORIZED BY THE SAID SECTION 18 FOR MARINE CORPS WARRANT OFFICERS IS REQUIRED TO BE LIMITED TO A PERCENTUM OF $148 PER MONTH. ARE TO BE CONSIDERED AS "BASE" PAY FOR PURPOSES OF COMPUTING THE PERCENTUM INCREASE IN BASE PAY FOR SEA OR FOREIGN SHORE DUTY AUTHORIZED BY SECTION 18 OF THE ACT OF MARCH 7. THE PERCENTUM INCREASE SHOULD BE COMPUTED ON THE ANNUAL PAY RATE TO WHICH THE INDIVIDUAL NURSE IS ENTITLED FOR HER LENGTH OF SERVICE. THE INCREASE FOR NAVY ENLISTED MEN AND WARRANT OFFICERS WHO ARE TEMPORARILY PROMOTED UNDER AUTHORITY OF THE ACT OF JULY 24.

B-24335, B-24553, APRIL 17, 1942, 21 COMP. GEN. 932

PAY - ADDITIONAL - SEA AND FOREIGN SHORE DUTY UNDER SECTION 18 OF THE ACT OF MARCH 7, 1942, PROVIDING THAT THE PERCENTUM INCREASE IN BASE PAY AUTHORIZED THEREBY FOR SEA OR FOREIGN SHORE DUTY BE INCLUDED IN COMPUTING INCREASES IN PAY FOR SUBMARINE DUTY, NAVY ENLISTED MEN ASSIGNED TO DUTY ABOARD A SUBMARINE AND ALSO TO THE DUTY OF DIVING ARE ENTITLED TO THE PERCENTUM INCREASE ON THEIR ADDITIONAL SUBMARINE/DUTY PAY BUT NOT UPON THEIR ADDITIONAL PAY FOR DIVING. THE PERCENTUM INCREASE IN BASE PAY FOR SEA OR FOREIGN SHORE DUTY AUTHORIZED BY SECTION 18 OF THE ACT OF MARCH 7, 1942, FOR NAVY AND COAST GUARD WARRANT OFFICERS SHOULD BE COMPUTED ON THE BASE PAY RATE APPLICABLE TO THEIR LENGTH OF SERVICE AS ESTABLISHED BY SECTION 10 OF THE ACT OF JUNE 10, 1922, AS AMENDED, WHILE THE INCREASE AUTHORIZED BY THE SAID SECTION 18 FOR MARINE CORPS WARRANT OFFICERS IS REQUIRED TO BE LIMITED TO A PERCENTUM OF $148 PER MONTH, THE INVARIABLE BASE PAY RATE ESTABLISHED FOR SUCH OFFICERS BY SECTION 9 OF THE ACT OF JUNE 10, 1922, REGARDLESS OF ANY LONGEVITY INCREASES. UNDER SECTION 18 OF THE ACT OF MARCH 7, 1942, PROVIDING FOR A 20 PERCENT INCREASE IN THE BASE PAY OF ENLISTED MEN AND WARRANT OFFICERS, AND FOR A 10 PERCENT INCREASE IN THE BASE PAY OF COMMISSIONED OFFICERS, FOR SEA OR FOREIGN SHORE DUTY, THE INCREASE FOR COMMISSIONED WARRANT OFFICERS WHO RECEIVE THE SAVED PAY OF THEIR FORMER WARRANT OFFICER GRADE PURSUANT TO SECTION 1 OF THE ACT OF JUNE 10, 1922, SHOULD BE COMPUTED ON THE BASIS OF THE 20 PERCENT APPLICABLE TO WARRANT OFFICERS. THE SEVERAL ANNUAL RATES OF PAY, DEPENDING UPON LENGTH OF SERVICE, ESTABLISHED BY SECTION 13 OF THE ACT OF JUNE 10, 1922, FOR NURSES, FEMALE, OF THE NAVY, RATHER THAN MERELY THE ANNUAL RATE ESTABLISHED FOR THE FIRST PERIOD OF SERVICE, ARE TO BE CONSIDERED AS "BASE" PAY FOR PURPOSES OF COMPUTING THE PERCENTUM INCREASE IN BASE PAY FOR SEA OR FOREIGN SHORE DUTY AUTHORIZED BY SECTION 18 OF THE ACT OF MARCH 7, 1942, AND, THEREFORE, THE PERCENTUM INCREASE SHOULD BE COMPUTED ON THE ANNUAL PAY RATE TO WHICH THE INDIVIDUAL NURSE IS ENTITLED FOR HER LENGTH OF SERVICE. UNDER SECTION 18 OF THE ACT OF MARCH 7, 1942, PROVIDING FOR A 20 PERCENT INCREASE IN THE BASE PAY OF ENLISTED MEN AND WARRANT OFFICERS, AND FOR A 10 PERCENT INCREASE IN THE BASE PAY OF COMMISSIONED OFFICERS, FOR SEA OR FOREIGN SHORE DUTY, THE INCREASE FOR NAVY ENLISTED MEN AND WARRANT OFFICERS WHO ARE TEMPORARILY PROMOTED UNDER AUTHORITY OF THE ACT OF JULY 24, 1941, TO WARRANT OR COMMISSIONED GRADES, AND WHO, BY REASON OF SECTION 7 (A) THEREOF, RECEIVE THE SAVED PAY AND ALLOWANCES OF THEIR PERMANENT ENLISTED OR WARRANT GRADES, SHOULD BE COMPUTED ON 20 PERCENT OF THE BASE PAY OF SUCH PERMANENT GRADES. THE PAY OF ENLISTED MEN OF THE INSULAR FORCE OF THE NAVY, WHICH IS FIXED BY SECTION 10 OF THE ACT OF JUNE 10, 1922, AT ONE-HALF THE PAY RATES PRESCRIBED FOR NAVY ENLISTED MEN IN CORRESPONDING GRADES, SHOULD INCLUDE THE PERCENTUM INCREASE AUTHORIZED FOR NAVY ENLISTED MEN BY SECTION 18 OF THE ACT OF MARCH 7, 1942, FOR ANY PERIODS DURING WHICH THEY MEET THE TERMS OF THE STATUTE BY SERVING ON SEA DUTY OR ON DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA. WHILE MIDSHIPMEN MAY BE CONSIDERED OFFICERS OF THE NAVY FOR CERTAIN PURPOSES, THEY ARE NEITHER COMMISSIONED OFFICERS NOR ENLISTED MEN, SO THAT MIDSHIPMEN OF THE NAVAL RESERVE, WHOSE ACTIVE DUTY PAY IS ASSIMILATED TO THE PAY OF MIDSHIPMEN OF THE REGULAR NAVY BY SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, ARE NOT ENTITLED WHILE ON SEA DUTY TO THE PERCENTUM INCREASE AUTHORIZED BY SECTION 18 OF THE ACT OF MARCH 7, 1942, TO BE PAID TO ENLISTED MEN, COMMISSIONED OFFICERS, ETC., OF THE NAVY ON SEA DUTY. WHERE THE FACTS IN A PARTICULAR CASE ESTABLISH THAT TEMPORARY ADDITIONAL DUTY ASHORE IN THE UNITED STATES TO WHICH A NAVY OFFICER OR ENLISTED MAN IN A SEA-DUTY STATUS IS ORDERED IS MERELY ANCILLARY TO A PARAMOUNT SEA DUTY, THE OFFICER OR MAN SHOULD BE CREDITED DURING THE TEMPORARY DUTY PERIOD WITH THE PAY INCREASE FOR SEA DUTY AUTHORIZED BY SECTION 18 OF THE ACT OF MARCH 7, 1942, BUT WHERE THE FACTS ESTABLISH THAT SUCH IS NOT THE CASE, CREDIT FOR THE INCREASE SHOULD BE DISCONTINUED FROM THE DATE OF DETACHMENT FROM SEA DUTY AND SHOULD BE RESUMED UPON RETURN TO THE SHIP FROM WHICH DETACHED. NAVY PERSONNEL ON FOREIGN SERVICE, AS DISTINGUISHED FROM SEA DUTY, WHO ARE ORDERED TO TEMPORARY ADDITIONAL DUTY IN THE UNITED STATES, ARE NOT ENTITLED, AFTER ARRIVAL IN THE UNITED STATES TO THE DATE OF DEPARTURE THEREFROM, TO THE PERCENTUM INCREASE IN PAY AUTHORIZED BY SECTION 18 OF THE ACT OF MARCH 7, 1942, FOR ANY PERIOD OF SERVICE WHILE ON DUTY "IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA.' THE PERCENTUM INCREASE IN PAY AUTHORIZED BY SECTION 18 OF THE ACT OF MARCH 7, 1942, FOR MILITARY AND NAVAL PERSONNEL IS PAYABLE UNDER THE TERMS OF THE STATUTE "FOR ANY PERIOD OF SERVICE WHILE ON SEA DUTY, OR DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA," SO THAT IT IS IMMATERIAL WHETHER THE DUTY IS OR IS NOT DENOMINATED "TEMPORARY.' THE PERCENTUM INCREASE IN PAY AUTHORIZED BY SECTION 18 OF THE ACT OF MARCH 7, 1942, FOR MILITARY AND NAVAL PERSONNEL FOR SEA DUTY IS PAYABLE FROM THE DATE OF REPORTING ABOARD THE VESSEL TO WHICH ASSIGNED AND THAT FOR FOREIGN SHORE DUTY IS PAYABLE FROM THE DATE OF DEPARTURE FROM THE UNITED STATES. WHILE THE QUESTION AS TO WHETHER A PERSON IS PERFORMING "SERVICE WHILE ON SEA DUTY" WITHIN THE MEANING OF SECTION 18 OF THE ACT OF MARCH 7, 1942, AUTHORIZING AN INCREASE IN PAY FOR MILITARY AND NAVAL PERSONNEL ON SEA OR FOREIGN SHORE DUTY, IS PRIMARILY ONE OF FACT, WHEN A PERSON ON SEA DUTY IS ORDERED TO TEMPORARY ADDITIONAL DUTY IN CONNECTION WITH THE FITTING OUT, CONVERSION AND FITTING OUT OF A VESSEL AND THE CONDITIONS OF "SERVICE WHILE ON SEA DUTY" CONTINUE DURING THE PERIOD OF ADDITIONAL TEMPORARY DUTY, THE SEA DUTY STATUS IS NOT AFFECTED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, APRIL 17, 1942:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 23, 1942, TRANSMITTING A LETTER DATED MARCH 19, 1942, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING DECISION UPON QUESTIONS ARISING UNDER SECTION 18 OF THE ACT OF MARCH 7, 1942, PUBLIC NO. 490, 56 STAT. 148.

THIS SECTION PROVIDES:

HEREAFTER THE BASE PAY OF ANY ENLISTED MAN, WARRANT OFFICER, OR NURSE (FEMALE) IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES SHALL BE INCREASED BY 20 PERCENTUM AND THE BASE PAY OF ANY COMMISSIONED OFFICER IN SUCH FORCES SHALL BE INCREASED BY 10 PERCENTUM FOR ANY PERIOD OF SERVICE WHILE ON SEA DUTY, OR DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA, WHICH INCREASES IN PAY SHALL BE IN ADDITION TO PAY AND ALLOWANCES AS NOW AUTHORIZED: PROVIDED, THAT THE PERCENTUM INCREASES HEREIN AUTHORIZED SHALL BE INCLUDED IN COMPUTING INCREASES IN PAY FOR AVIATION AND SUBMARINE DUTY: PROVIDED FURTHER, THAT THIS SECTION SHALL BE EFFECTIVE FROM DECEMBER 7, 1941, AND SHALL CEASE TO BE IN EFFECT TWELVE MONTHS AFTER THE TERMINATION OF THE PRESENT WAR IS PROCLAIMED BY THE PRESIDENT.

THE POINTS UPON WHICH DECISION IS REQUESTED WILL BE CONSIDERED AND ANSWERED IN THE ORDER STATED IN THE LETTER OF MARCH 19, 1942.

(1) IT IS REQUESTED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL WHETHER ENLISTED MEN QUALIFIED AND DETAILED OR ASSIGNED AS MASTER DIVERS, DIVERS FIRST AND SECOND CLASS AND ENLISTED MEN ASSIGNED TO DUTY ABOARD SUBMARINES ARE ENTITLED TO THE 20 PERCENT INCREASE IN THE COMPUTATION OF THEIR DIVING AND SUBMARINE PAY.

UNDER THE FIRST PROVISO OF SECTION 18 OF THE ACT OF MARCH 7, 1942, THE PERCENTUM INCREASE IS AUTHORIZED TO BE COMPUTED UPON THE INCREASE IN PAY FOR SUBMARINE DUTY. THE ACT OF JANUARY 16, 1936, 49 STAT. 1091, 34 U.S.C. 886, PROVIDES:

* * * THAT HEREAFTER ALL OFFICERS OF THE NAVY ON DUTY ON BOARD A SUBMARINE OF THE NAVY, INCLUDING SUBMARINES UNDER CONSTRUCTION FOR THE NAVY FROM THE TIME BUILDERS' TRIALS COMMENCE, OR ON DUTY AT SUBMARINE ESCAPE TRAINING TANKS, THE NAVY DEEP SEA DIVING SCHOOL, OR THE NAVAL EXPERIMENTAL DIVING UNIT, SHALL, WHILE SO SERVING, RECEIVE 25 PERCENTUM ADDITIONAL OF THE DAY FOR THEIR RANK AND SERVICE AS NOW PROVIDED BY LAW; AND AN ENLISTED MAN OF THE UNITED STATES NAVY ASSIGNED TO DUTY ABOARD A SUBMARINE OF THE NAVY, INCLUDING SUBMARINES UNDER CONSTRUCTION FOR THE NAVY FROM THE TIME BUILDERS' TRIALS COMMENCE, OR TO THE DUTY OF DIVING, SHALL, IN LIEU OF THE ADDITIONAL PAY NOW AUTHORIZED, RECEIVE PAY UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY, AT THE RATE OF NOT LESS THAN $5 PER MONTH AND NOT EXCEEDING $30 PER MONTH, IN ADDITION TO THE PAY AND ALLOWANCES OF HIS RATING AND SERVICE: PROVIDED, THAT DIVERS EMPLOYED IN ACTUAL SALVAGE OPERATIONS IN DEPTHS OF OVER NINETY FEET SHALL, IN ADDITION TO THE FOREGOING, RECEIVE THE SUM OF $5 PER HOUR FOR EACH HOUR OR FRACTION THEREOF SO EMPLOYED.

SUBMARINE DUTY AND DIVING DUTY ARE SEPARATE AND DISTINCT DUTIES WITH ADDITIONAL PAY PROVIDED FOR EACH. THIS WAS TRUE PRIOR TO THE ACT OF APRIL 9, 1928, 45 STAT. 412, OF WHICH THE ACT OF JANUARY 16, 1936, WAS AMENDATORY AND THIS CONTINUES TO BE TRUE AT THE PRESENT TIME. ADDITIONAL PAY FOR DIVING DUTY IS NOT NECESSARILY DEPENDENT UPON ASSIGNMENT TO DUTY ABOARD A SUBMARINE. 12 COMP. GEN. 498. IN VIEW OF THIS WELL-UNDERSTOOD DISTINCTION IT APPEARS CLEAR THAT AS USED IN SECTION 18 OF THE ACT OF MARCH 7, 1942, THE TERM "SUBMARINE DUTY" DOES NOT COMPREHEND THE ADDITIONAL PAY FOR DIVING. THIS QUESTION IS ANSWERED THAT THE ENLISTED MEN REFERRED TO WHEN ASSIGNED TO DUTY ABOARD SUBMARINES ENTITLING THEM TO ADDITIONAL PAY FOR SUBMARINE DUTY ARE ENTITLED TO THE INCREASE ON THEIR SUBMARINE PAY BUT NOT UPON THE ADDITIONAL PAY AUTHORIZED FOR DIVING.

(2) * * * IT IS REQUESTED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL AS TO THE RATE OF PAY WHICH SHOULD BE USED AS A BASIS FOR COMPUTING THE PERCENTAGE INCREASES FOR SEA AND FOREIGN SHORE DUTY PAY UNDER THE PROVISIONS OF SECTION 18 OF THE ACT OF MARCH 7, 1942, IN THE CASE OF WARRANT OFFICERS OF THE NAVY, COAST GUARD, AND MARINE CORPS.

SECTION 18 OF THE ACT OF MARCH 7, 1942, PROVIDES THAT THE BASE PAY OF WARRANT OFFICERS IN THE MILITARY AND NAVAL FORCES SHALL BE INCREASED BY 20 PERCENTUM.

SECTION 9 OF THE ACT OF JUNE 10, 1922, 42 STAT. 629, 37 U.S.C. 13, PROVIDES:

THAT COMMENCING JULY 1, 1922, THE MONTHLY BASE PAY OF WARRANT OFFICERS AND ENLISTED MEN OF THE ARMY AND MARINE CORPS SHALL BE AS FOLLOWS: WARRANT OFFICERS OF THE ARMY AND MARINE CORPS, $148; * * * COMMENCING JULY 1, 1922, WARRANT OFFICERS OF THE ARMY AND MARINE CORPS * * * SHALL RECEIVE, AS A PERMANENT ADDITION TO THEIR PAY, AN INCREASE OF 5 PERCENTUM OF THEIR BASE PAY FOR EACH FOUR YEARS OF SERVICE IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT NOT TO EXCEED 25 PERCENTUM. * * *

SECTION 10 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY SECTION 3 OF THE ACT OF FEBRUARY 16, 1929, 45 STAT. 1187, 37 U.S.C. 14, PROVIDES:

THAT HEREAFTER THE MONTHLY BASE PAY OF WARRANT OFFICERS OF THE NAVY AND COAST GUARD SHALL BE AS FOLLOWS: DURING THE FIRST SIX YEARS OF SERVICE, $153; DURING THE SECOND SIX YEARS OF SERVICE, $168; AFTER TWELVE YEARS' SERVICE, $189.

IT IS UNDOUBTEDLY TRUE THAT THE HIGHER RATES OF PAY AUTHORIZED IN AMENDED SECTION 10 OF THE ACT OF JUNE 10, 1922, FOR WARRANT OFFICERS OF THE NAVY AND COAST GUARD ARE PREMISED ON LENGTH OF SERVICE, SUCH NEW RATES EQUALING THOSE PREVIOUSLY PROVIDED FOR THESE WARRANT OFFICERS WHILE SERVING AT SEA, BUT IT IS EQUALLY TRUE THAT SUCH HIGHER RATES OF PAY HAVE BEEN SPECIFICALLY DENOMINATED IN THE STATUTE AS THE MONTHLY BASE PAY. SECTION 9 APPLICABLE TO WARRANT OFFICERS OF THE MARINE CORPS DEFINES ONLY THEIR INITIAL PAY RATE AS BASE PAY AND IN PROVIDING THE INCREASE PERCENTUM FOR EACH FOUR YEARS OF SERVICE THEREAFTER AUTHORIZES THE INCREASE ON A PERCENTUM OF THEIR BASE PAY. THE PAY FIXED FOR WARRANT OFFICERS OF THE NAVY AND COAST GUARD, WHETHER SERVING IN THEIR FIRST 6 YEARS OF SERVICE, IN THEIR SECOND 6 YEARS OF SERVICE, OR AFTER 12 YEARS' SERVICE, IS BASE PAY WHILE THE LONGEVITY PAY OF WARRANT OFFICERS OF THE MARINE CORPS IN EXCESS OF $148 PER MONTH BY REASON OF LENGTH OF SERVICE DOES NOT REPRESENT BASE PAY. AS A CONSEQUENCE OF THE LAW THE INCREASE IN PAY OF WARRANT OFFICERS OF THE NAVY AND COAST GUARD WHEN ENTITLED TO THE PERCENTUM INCREASE UNDER SECTION 18 OF THE ACT OF MARCH 7, 1942, SHOULD BE COMPUTED ON THE BASE PAY RATE APPLICABLE TO THEIR LENGTH OF SERVICE UNDER SECTION 10 OF THE ACT OF JUNE 10, 1922, AS AMENDED, AND THE INCREASE OF WARRANT OFFICERS OF THE MARINE CORPS IS REQUIRED TO BE LIMITED TO A PERCENTUM OF THE BASE PAY RATE OF $148 PER MONTH.

(3) * * * IT IS REQUESTED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL AS TO WHETHER COMMISSIONED WARRANT OFFICERS DRAWING THE SAVED PAY OF A WARRANT OFFICER ARE ENTITLED TO PERCENTAGE INCREASES BASED ON 20 PERCENT AS PROVIDED FOR WARRANT OFFICERS, OR BASED ON 10 PERCENT AS PROVIDED FOR COMMISSIONED OFFICERS, UNDER THE PROVISIONS OF SECTION 18 OF THE ACT OF MARCH 7, 1942.

SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, 37 U.S.C. 5, CONTAINS A PROVISO: "THAT A COMMISSIONED WARRANT OFFICER PROMOTED FROM THE GRADE OF WARRANT OFFICER SHALL SUFFER NO REDUCTION OF PAY BY REASON OF SUCH PROMOTION.' COMMISSIONED WARRANT OFFICERS ON PROMOTION FROM WARRANT OFFICERS BECOME ENTITLED BY VIRTUE OF THE PROMOTION TO THE PAY ATTACHING TO THE COMMISSIONED WARRANT OFFICER UNLESS HIS PAY AS A WARRANT OFFICER IS GREATER, IN WHICH EVENT HE IS ENTITLED TO PAY AS A WARRANT OFFICER UNLESS AND UNTIL THE PAY AS A COMMISSIONED WARRANT OFFICER IS GREATER. 3 COMP. GEN. 142; 26 COMP. DEC. 935. WHERE THE COMMISSIONED WARRANT OFFICER IS ENTITLED TO SAVED PAY OF A WARRANT OFFICER THE INCREASE PROVIDED IN SECTION 18 OF THE ACT OF MARCH 7, 1942, IS REQUIRED TO BE COMPUTED ON THE PERCENTAGE APPLICABLE TO WARRANT OFFICERS. SEE 16 COMP. DEC. 135.

(4) * * * IT IS REQUESTED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL AS TO WHETHER THE APPLICABLE RATES OF PAY SET FORTH IN TABLE V OF THE PAY BILL INSTRUCTIONS, WHICH GIVES EFFECT TO THE RATES OF PAY SPECIFIED FOR NURSES, MAY BE CONSIDERED AS BASE PAY AND WHETHER THE PERCENTAGE INCREASE OF 20 PERCENT MAY BE COMPUTED ON THE BASIS OF THE ANNUAL PAY PRESCRIBED THEREIN FOR THE SEVERAL PERIODS OF SERVICE.

SECTION 13 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, 37 U.S.C. 22, PROVIDES:

THAT, COMMENCING JULY 1, 1922, THE ANNUAL PAY OF FEMALE NURSES OF THE ARMY AND NAVY SHALL BE AS FOLLOWS: DURING THE FIRST THREE YEARS OF SERVICE, $840; FROM THE BEGINNING OF THE FOURTH YEAR OF SERVICE UNTIL THE COMPLETION OF THE SIXTH YEAR OF SERVICE, $1,080; FROM THE BEGINNING OF THE SEVENTH YEAR OF SERVICE UNTIL THE COMPLETION OF THE NINTH YEAR OF SERVICE, $1,380; FROM THE BEGINNING OF THE TENTH YEAR OF SERVICE, $1,560. * * *

ALTHOUGH THE ANNUAL RATES OF PAY AUTHORIZED BY SECTION 13 OF THE ACT OF JUNE 10, 1922, FOR NURSES, FEMALE, OF THE NAVY ARE REFERRED TO AS "THE ANNUAL PAY" AS DISTINGUISHED FROM ANNUAL "BASE" PAY OR "BASE" PAY AS USED IN SECTION 10 WITH REFERENCE TO THE PAY FIXED FOR WARRANT OFFICERS OF THE NAVY AND COAST GUARD, THE PAY PROVIDED FOR NURSES, FEMALE, REPRESENTS THEIR STATUTORY PAY AND IS INDIVISIBLE. WHILE THE ANNUAL RATES OF PAY AUTHORIZED IN SECTION 13 INCREASE FROM THE BEGINNING OF THE FOURTH YEAR OF SERVICE, THERE IS NOTHING THEREIN TO INDICATE THAT THE HIGHER RATES ARE INTENDED TO REPRESENT THE SUM OF THE INITIAL ANNUAL SALARY RATE AND THE DIFFERENCE THEREIN PROVIDED AS AN INCREASE DUE TO LENGTH OF SERVICE. IS CONCLUDED THAT THE PERCENTAGE INCREASE UNDER SECTION 18 OF THE ACT OF MARCH 7, 1942, SHOULD BE COMPUTED ON THE ANNUAL PAY RATES TO WHICH THE INDIVIDUAL NURSE IS ENTITLED.

(5). * * * IT IS REQUESTED THAT A DECISION BE OBTAINED AS TO WHETHER ENLISTED MEN AND WARRANT OFFICERS TEMPORARILY APPOINTED TO WARRANT OR COMMISSIONED RANK ARE ENTITLED TO COMPUTE THEIR SAVED PAY ON THE BASIS OF 20 PERCENT OF THEIR BASE PAY AS ENLISTED MEN OR WARRANT OFFICERS.

THE ACT OF JULY 24, 1941, PUBLIC, NO. 188, 55 STAT. 603, 604, PROVIDES, IN PART:

SEC. 2. (A) AS USED IN THIS ACT, THE WORDS "TEMPORARILY APPOINTED" SHALL BE INTERPRETED TO MEAN ALSO "TEMPORARILY PROMOTED" OR "TEMPORARILY ADVANCED IN RANK," AS THE CASE MAY BE.

(B) THE FOLLOWING PERSONNEL MAY BE TEMPORARILY APPOINTED TO RANKS OR GRADES IN THE REGULAR NAVY OR MARINE CORPS, NOT ABOVE LIEUTENANT IN THE NAVY AND CAPTAIN IN THE MARINE CORPS:

(2) WARRANT OFFICERS OF THE REGULAR NAVY AND MARINE CORPS.

(3) FIRST-CLASS PETTY OFFICERS AND ABOVE IN THE REGULAR NAVY AND PLATOON OR STAFF SERGEANTS AND ABOVE IN THE REGULAR MARINE CORPS, INCLUDING ENLISTED MEN OF THOSE GRADES ON THE RETIRED LIST ON ACTIVE DUTY.

(4) ENLISTED MEN OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE ON ACTIVE DUTY IN THE GRADES HEREIN SPECIFIED FOR ENLISTED MEN OF THE REGULAR NAVY OR MARINE CORPS.

SEC. 7. (A) THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS OF THOSE PERSONS TEMPORARILY APPOINTED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT SHALL NOT BE VACATED BY REASON OF SUCH TEMPORARY APPOINTMENTS, SUCH PERSONS SHALL NOT BE PREJUDICED THEREBY IN REGARD TO PROMOTION, ADVANCEMENT, OR APPOINTMENT IN ACCORDANCE WITH LAWS RELATING TO THE REGULAR NAVY OR MARINE CORPS, AND THEIR RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCEPTANCE OF COMMISSIONS OR WARRANTS HEREUNDER: PROVIDED, THAT EXCEPT AS OTHERWISE PROVIDED HEREIN NO PERSON SHALL ACCEPT A COMMISSION OR WARRANT UNDER SECTIONS 2 AND 3 OF THIS ACT SHALL, WHILE SERVING THEREUNDER, BE ENTITLED TO PAY OR ALLOWANCE EXCEPT AS PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED: PROVIDED FURTHER, THAT NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THIS ACT SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN SO TEMPORARILY APPOINTED.

BY REASON OF THE LAST PROVISO OF SECTION 7 (A) OF THE ACT OF JULY 24, 1941, ENLISTED MEN AND WARRANT OFFICERS TEMPORARILY APPOINTED TO WARRANT OR COMMISSIONED GRADES IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 2 AND 3 OF THAT ACT, ARE ENTITLED TO THE BENEFITS OF THE PAY AND ALL PROVISIONS APPLICABLE TO THEIR PERMANENT ENLISTED OR WARRANT GRADES WHERE THE PAY AND ALLOWANCES APPLICABLE TO THE WARRANT OR COMMISSIONED GRADE WHICH TEMPORARILY APPOINTED ARE LESS. WHERE SUCH TEMPORARILY PROMOTED WARRANT OR COMMISSIONED OFFICERS RECEIVE THE SAVED PAY AND ALLOWANCES OF THEIR ENLISTED OR WARRANT GRADES, THE INCREASE UNDER SECTION 18 OF ACT OF MARCH 7, 1942, SHOULD BE COMPUTED ON 20 PERCENTUM OF THE BASE PAY OF THEIR ENLISTED OR WARRANT GRADES. (6) THE INSULAR FORCE, UNITED STATES NAVY, WAS ESTABLISHED BY EXECUTIVE ORDER DATED APRIL 5, 1901, UNDER WHICH THE SECRETARY OF THE NAVY WAS AUTHORIZED TO ENLIST IN THE INSULAR FORCE NOT TO EXCEED 500 FILIPINOS IN THE RATINGS AND AT THE RATES OF PAY SPECIFIED THEREIN. IN 12 COMP. DEC. 189 IT WAS HELD:

"ALTHOUGH UNDER THE FOREGOING EXECUTIVE ORDER (OF APRIL 5, 1901) THE MEN ARE ENLISTED IN WHAT IS DESIGNATED AS THE INSULAR FORCE, UNITED STATES NAVY, THEY ARE, NEVERTHELESS, ENLISTED MEN IN AND OF THE REGULAR NAVY OF THE UNITED STATES. THE FACT THAT THEY ARE ATTACHED TO A PART OR BRANCH THEREOF TERMED THE INSULAR FORCE CANNOT AFFECT THE CONCLUSION JUST STATED. FOR SAID INSULAR FORCE WAS ESTABLISHED UNDER AND BY VIRTUE OF THE STATUTES RELATING TO AND GOVERNING THE NAVY OF THE UNITED STATES; AND, UNLESS SAID INSULAR FORCE BE A PART OF THE REGULAR NAVY, THERE WOULD EXIST NO AUTHORITY FOR THE ESTABLISHMENT OF SUCH INSULAR FORCE.'

IN THIS CONNECTION, ATTENTION IS ALSO INVITED TO 27 COMP. DEC. 357. ENLISTED MEN MAY BE TRANSFERRED AWAY FROM THE PHILIPPINE ISLANDS FOR DUTY ( NAVY DEPARTMENT FILE 26754-3591:9, FEBRUARY 9, 1924; L.R.N.A., 1929, P. 103); THEY ARE ELIGIBLE FOR TRANSFER TO THE FLEET RESERVE ( NAVY DEPARTMENT FILE 26254-3591:9-7 J:AC; AUGUST 11, 1925 CMO 8-1925 PAGE 7); THEY ARE ENTITLED TO THE ENLISTMENT ALLOWANCE AUTHORIZED BY SECTION 10 OF THE ACT OF JUNE 10, 1922 ( NAVY DEPARTMENT FILE 12423-13 K, JULY 19, 1923); THEY ARE ENTITLED TO OUTFITS ON FIRST ENLISTMENT IN THE AMOUNTS SET FORTH IN ARTICLE 1431-3 (B) BUREAU OF SUPPLIES AND ACCOUNTS MANUAL (1 COMP. GEN. 480); AND THEY COME WITHIN THE PROVISIONS OF THE ACT OF JUNE 4, 1920, AUTHORIZING PAYMENT OF SIX MONTHS' DEATH GRATUITY UNDER THE CONDITIONS SPECIFIED THEREIN ( NAVY DEPARTMENT FILE 26252-127:10 J, FEBRUARY 11, 1926).

8. SECTION 10 OF THE ACT OF JUNE 10, 1922, PROVIDES THAT THE RATES OF PAY OF MEMBERS OF THE INSULAR FORCE SHALL BE ONE-HALF THE RATES PRESCRIBED FOR ENLISTED MEN OF THE NAVY IN CORRESPONDING RATINGS. PUBLIC LAW 490 DATED MARCH 7, 1942, IN EFFECT INCREASES THE BASE PAY OF ENLISTED MEN IN THE NAVAL FORCES AND, THEREFORE, SUCH INCREASE COMES WITHIN THE CATEGORY OF PAY CONFERRED UPON ALL ENLISTED MEN BY STATUTE AND UNDER 26 COMP. DEC. 428 SHOULD BE PAID TO ENLISTED MEN OF THE INSULAR FORCE. IT IS REQUESTED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL WHETHER ENLISTED MEN OF THE INSULAR FORCE MAY BE PAID THE 20 PERCENT INCREASE AUTHORIZED BY PUBLIC 490 APPROVED MARCH 7, 1942, UNDER THE SAME CONDITIONS AS ENLISTED MEN OF THE REGULAR NAVY.

IN 26 COMP. DEC. 428, IT WAS HELD THAT ENLISTED MEN OF THE INSULAR FORCE OF THE NAVY WERE ENTITLED TO THE EXTRA PAY CONFERRED BY STATUTE UPON ALL ENLISTED MEN. UNDER SECTION 10 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630, 37 U.S.C. 16, THE RATES OF PAY OF THE INSULAR FORCE OF THE NAVY WERE FIXED AT ONE-HALF THE RATES OF PAY PRESCRIBED FOR ENLISTED MEN OF THE NAVY IN CORRESPONDING GRADES. SECTION 18 OF THE ACT OF MARCH 7, 1942, EMBRACES ANY ENLISTED MAN IN THE NAVAL FORCES OF THE UNITED STATES FOR ANY PERIOD OF SERVICE WHILE ON SEA DUTY OR DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA. IN VIEW OF THE LONG ADMINISTRATIVE AND ACCOUNTING UNDERSTANDING OF THE STATUS OF PERSONS CONSTITUTING THE INSULAR FORCE AND THE STATUTE NOW FIXING THEIR PAY AT ONE -HALF THE RATES OF PAY PRESCRIBED FOR ENLISTED MEN OF THE NAVY OF CORRESPONDING RATINGS, IT IS REASONABLY CLEAR THEY ARE ENTITLED TO THE BENEFITS OF SECTION 18 OF THE ACT OF MARCH 7, 1942. THAT IS, TO PRESERVE THE ONE-HALF PAY TO WHICH THE ENLISTED MEN OF THE INSULAR FORCE ARE ENTITLED UNDER SECTION 10 OF THE ACT OF JUNE 10, 1922, AND AT THE SAME TIME GIVE FULL EFFECT TO SECTION 18 OF THE ACT OF MARCH 7, 1942, THE PAY OF MEMBERS OF THE INSULAR FORCE OF THE NAVY SHOULD INCLUDE THE PERCENTUM AUTHORIZED BY THE LAST-MENTIONED ACT FOR ANY PERIOD OF SEA DUTY OR DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA.

(7) 9. FORMER CADETS, MERCHANT MARINE RESERVE, SERVING IN MERCHANT MARINE VESSELS TAKEN OVER BY THE NAVY AND WHO VOLUNTEER FOR ACTIVE DUTY, UNDER THE INSTRUCTIONS CONTAINED IN BUREAU OF NAVIGATION CIRCULAR LETTER 101-41 DATED AUGUST 12, 1941 (COPY ENCLOSED HEREWITH) ARE APPOINTED AS MIDSHIPMEN, MERCHANT MARINE RESERVE. IN ACCORDANCE WITH SECTION 7 OF THE NAVAL RESERVE ACT OF 1938 MIDSHIPMEN OF THE NAVAL RESERVE ON ACTIVE DUTY ARE ENTITLED TO RECEIVE THE SAME PAY AND ALLOWANCES AS MIDSHIPMEN OF THE REGULAR NAVY. AT THE PRESENT TIME THIS CONSISTS OF PAY AT THE RATE OF $780.00 PER ANNUM AND A RATION ALLOWANCE OF $0.75 PER DAY. THERE ARE A NUMBER OF MIDSHIPMEN OF THE REGULAR NAVY. AT THE PRESENT TIME THIS CONSISTS OF PAY AT THE RATE OF $780.00 PER ANNUM AND A RATION ALLOWANCE OF $0.75 PER DAY. THERE ARE A NUMBER OF MIDSHIPMEN, MERCHANT MARINE RESERVE, NOW SERVING ON ACTIVE DUTY AS JUNIOR OFFICERS ON VESSELS OF THE NAVY AND IT IS REQUESTED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL AS TO WHETHER SUCH MIDSHIPMEN ARE ENTITLED TO PERCENTAGE INCREASE OF 20 PERCENT OR 10 PERCENT FOR SEA DUTY.

SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, 34 U.S.C. 853E, PROVIDES, IN PART:

* * * MIDSHIPMEN, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF THE NAVAL RESERVE * * * WHEN EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY WITH PAY OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY, SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS RECEIVED BY MIDSHIPMEN, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF THE REGULAR NAVY OF THE SAME RANK, GRADE, OR RATING, AND OF THE SAME LENGTH OF SERVICE * * *.

SECTION 305 OF THE SAME ACT, 52 STAT. 1182, 34 U.S.C. 855D, PROVIDES, IN PART:

SUBJECT TO THE PROVISIONS OF SECTION 306 HEREOF, IN TIME OF PEACE COMMISSIONED OFFICERS APPOINTED TO THE NAVAL RESERVE SHALL BE COMMISSIONED TO SERVE DURING THE PLEASURE OF THE PRESIDENT, IN GRADES OR RANKS NOT ABOVE THAT OF LIEUTENANT COMMANDER, EXCEPT THAT A SMALL PERCENTAGE OF OFFICERS IN THE HIGHER GRADES OR RANKS MAY, IF QUALIFIED, BE COMMISSIONED IN THE GRADES OR RANKS OF REAR ADMIRAL, CAPTAIN, AND COMMANDER. WARRANT OFFICERS, AVIATION AND MERCHANT MARINE CADETS, AND MIDSHIPMEN SHALL BE APPOINTED TO SERVE DURING THE PLEASURE OF THE SECRETARY OF THE NAVY. * *

ARTICLE H-2104 (3), BUREAU OF NAVIGATION MANUAL, PROVIDES:

AVIATION CADETS AND CADETS, MERCHANT MARINE RESERVE, SHALL BE APPOINTED BY THE SECRETARY OF THE NAVY TO SERVE DURING THE PLEASURE OF THE SECRETARY OF THE NAVY. APPOINTMENTS TO THE GRADE OF MIDSHIPMAN WILL BE MADE ONLY DURING TIMES OF THREATENED EMERGENCY, IN ACCORDANCE WITH INSTRUCTIONS ISSUED BY THE BUREAU OF NAVIGATION IN SEPARATE PUBLICATIONS.

SECTION 18 OF THE ACT OF MARCH 7, 1942, PROVIDES IN EXPRESS TERMS FOR A PERCENTUM INCREASE IN THE BASE PAY OF ANY ENLISTED MAN, WARRANT OFFICER, NURSE (FEMALE) AND ANY COMMISSIONED OFFICER FOR ANY PERIOD OF SERVICE WHILE ON SEA DUTY. IT DOES NOT MENTION MIDSHIPMEN. PRIOR TO THE ACT OF MARCH 7, 1912, 37 STAT. 73, STUDENTS AT THE NAVAL ACADEMY WERE REQUIRED TO SERVE SIX YEARS, THE LAST TWO OF WHICH WERE REQUIRED TO BE PERFORMED AS MIDSHIPMEN AT SEA WITH A HIGHER RATE OF PAY THEREFOR. SEE, 1556 REVISED STATUTES, AND THE ACT OF MAY 13, 1908, 35 STAT. 128. ALSO, 20 COMP. DEC. 141. THE GRADE OF MIDSHIPMEN AS PART OF THE ACTIVE LIST OF THE LINE WAS ABOLISHED AND THE GRADE OF JUNIOR ENSIGN CREATED BY THE ACT OF MARCH 3, 1883, 22 STAT. 472, WHICH PROVIDED THAT MIDSHIPMEN THEN ON THE LIST SHALL CONSTITUTE A JUNIOR GRADE OF AND BE COMMISSIONED AS ENSIGNS HAVING THE SAME RANK AND PAY AS THEN PROVIDED BY LAW FOR MIDSHIPMEN. THE GRADE OF JUNIOR ENSIGN WAS ABOLISHED BY THE ACT OF JUNE 26, 1884, 23 STAT. 60, WHICH PROVIDED THAT THE JUNIOR ENSIGNS THEN ON THE LIST SHOULD BE COMMISSIONED ENSIGNS IN THE NAVY AND THAT GRADUATES OF THE NAVAL ACADEMY WHO ARE ASSIGNED TO THE LINE OF THE NAVY ON THE SUCCESSFUL COMPLETION OF THEIR COURSE SHALL BE COMMISSIONED ENSIGNS IN THE NAVY. SEE LAWS RELATING TO THE NAVY, ANNOTATED, PAGE 799.

IN 5 COMP. DEC. 136, IT WAS HELD (QUOTING FROM THE SYLLABUS):

NAVAL CADETS PURSUING A COURSE OF STUDY ON THE U.S.S. SANTEE ARE NOT ENTITLED TO THE INCREASED PAY PROVIDED FOR SERVICE AT SEA IN OTHER THAN PRACTICE SHIPS, SUCH VESSEL WHILE SO ENGAGED BEING TO ALL INTENTS AND PURPOSES A PRACTICE SHIP.

IN 14 COMP. DEC. 882, IT WAS HELD THAT MIDSHIPMEN AFTER GRADUATION ARE NOT ENTITLED TO THE 10 PERCENTUM INCREASE OF PAY PROVIDED BY THE ACT OF MAY 13, 1908, 35 STAT. 128, WHILE SERVING ON SEA DUTY OR ON SHORE DUTY BEYOND THE CONTINENTAL UNITED STATES.

WHILE MIDSHIPMEN HAVE BEEN HELD TO BE OFFICERS FOR CERTAIN PURPOSES, UNITED STATES V. COOK, 128 U.S. 254; UNITED STATES V. BAKER, 125 U.S. 645, THEY ARE NOT COMMISSIONED OFFICERS NOR ARE THEY ENLISTED MEN. WITH THIS IN MIND IT IS TO BE INFERRED THAT THE EXPRESS ENUMERATION IN SECTION 18 WAS DISTRIBUTIVE AND EXCLUSIVE AND WAS NOT INTENDED TO AFFECT OR INCREASE THE STATUTORY PAY OF MIDSHIPMEN OF THE NAVAL ACADEMY WHILE PURSUING THEIR NORMAL COURSE OF INSTRUCTIONS. THE PAY OF MIDSHIPMEN OF THE NAVAL RESERVE BEING ASSIMILATED TO THE PAY OF MIDSHIPMEN OF THE NAVAL ACADEMY THEY ARE NOT ENTITLED TO INCREASED PAY UNDER SECTION 18 OF THE ACT OF MARCH 7, 1942, EITHER AS ENLISTED MEN, WARRANT OFFICERS, OR AS COMMISSIONED OFFICERS.

(8) 10. THE QUESTION ALSO ARISES AS TO WHETHER PERSONNEL ON SEA DUTY OR ON FOREIGN SERVICE DUTY ARE ENTITLED TO CONTINUE IN RECEIPT OF THE APPLICABLE PERCENTAGE INCREASE WHILE ABSENT FROM THEIR PERMANENT STATIONS ON TEMPORARY DUTY IN THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN CONNECTION WITH SHIPS FITTING OUT OR UNDERGOING CONVERSION. IN CONNECTION WITH THE RIGHT OF AN OFFICER TO SEA DUTY PAY UNDER THE PROVISIONS OF THE ACT OF MAY 13, 1908, THE COMPTROLLER OF THE TREASURY IN 16 COMP. DEC. 464 STATED THAT NAVAL OFFICERS ON DUTY AT SEA WHO ARE ORDERED TO DUTY ON SHORE UNDER ORDERS WHICH SPECIFY THAT SUCH SHORE DUTY IS TEMPORARY AND IN ADDITION TO THEIR PRESENT DUTIES ARE ENTITLED TO THE PAY ALLOWED AN OFFICER ON SEA DUTY. IN DECISION OF JANUARY 17, 1916, THE COMPTROLLER OF THE TREASURY RULED THAT AN OFFICER ORDERED FROM SHORE DUTY BEYOND THE SEAS TO TEMPORARY DUTY IN THE UNITED STATES IS NOT ENTITLED TO THE 10 PERCENT ADDITIONAL PAY DURING THE PERIOD OF TEMPORARY DUTY. IT IS THEREFORE REQUESTED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL ON THE FOLLOWING POINTS:

(A) WHETHER PERSONNEL OF THE NAVY ON SEA DUTY OR FOREIGN SERVICE DUTY ORDERED TO TEMPORARY ADDITIONAL DUTY ASHORE IN THE UNITED STATES ARE ENTITLED TO CONTINUE IN RECEIPT OF APPLICABLE INCREASE OF PAY DURING PERIOD OF SUCH TEMPORARY DUTY? IF NOT, FROM WHAT DATE SHOULD CREDIT OF THE INCREASE BE DISCONTINUED AND FROM WHAT DATE SHOULD THE CREDIT BE RESUMED FOLLOWING DETACHMENT FROM SUCH TEMPORARY DUTY?

(B) WHETHER PERSONNEL OF THE NAVY ON SHORE DUTY IN THE UNITED STATES ORDERED TO TEMPORARY ADDITIONAL SEA DUTY OR TEMPORARY ADDITIONAL FOREIGN SHORE DUTY ARE ENTITLED TO THE APPLICABLE INCREASE WHILE SERVING UNDER SUCH TEMPORARY DUTY ORDERS? IF SO, FOR WHAT INCLUSIVE PERIODS ARE SUCH PERSONNEL ENTITLED TO THE APPLICABLE INCREASE?

(C) WHETHER PERSONNEL OF THE NAVY ON SEA DUTY ORDERED TO TEMPORARY ADDITIONAL DUTY IN CONNECTION WITH THE FITTING OUT, CONVERSION AND FITTING OUT OF A VESSEL, ARE ENTITLED TO CONTINUE IN RECEIPT OF SEA PAY? IF NOT, FROM WHAT DATE SHOULD CREDIT OF THE INCREASE BE DISCONTINUED AND FROM WHAT DATE SHOULD THE CREDIT BE RESUMED FOLLOWING DETACHMENT FROM SUCH TEMPORARY DUTY? IN THIS CONNECTION, IT IS REQUESTED THAT THERE BE TAKEN INTO CONSIDERATION THE FACTOR THAT THE SHIP MAY BE PLACED IN SERVICE, PLACED IN FULL COMMISSION, OR COMMISSIONED IN ORDINARY BEFORE BEING PLACED IN FULL COMMISSION. ( ART. 637, 639, 640 NAVY REGULATIONS.)

THE DECISION 16 COMP. DEC. 464--- UPON THE RIGHT OF A NAVAL OFFICER TO ADDITIONAL PAY UNDER THE ACT OF MAY 13, 1908, 35 STAT. 128, DURING A PERIOD WHILE THE OFFICER UNDER ORDERS WAS ASSIGNED TO TEMPORARY DUTY IN WASHINGTON, D.C., IN ADDITION TO HIS THEN PRESENT DUTIES UPON COMPLETION OF WHICH HE WAS DIRECTED TO PROCEED AND RESUME HIS DUTIES ON BOARD THE U.S.S. GEORGIA--- WAS PREDICATED UPON THE DECISION OF THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF UNITED STATES V. ENGARD, 196 U.S. 511. IN THAT CASE THE FORMER COMPTROLLER OF THE TREASURY REFERRED TO THE COURT'S REPLY TO THE ARGUMENT ADVANCED BY THE ATTORNEY FOR THE GOVERNMENT IN THE ENGARD CASE QUOTING THEREFROM, 16 COMP. DEC. 466, AS FOLLOWS:

IN EFFECT, THE PROPOSITION IS THAT IT MUST BE ASSUMED AS A MATTER OF LAW, IN THE ABSENCE OF A FINDING TO THAT EFFECT, THAT THE TEMPORARY SHORE DUTY WAS OF SUCH A PERMANENT CHARACTER AS TO RENDER IT IMPOSSIBLE FOR THE OFFICER TO CONTINUE TO PERFORM DUTY UNDER HIS PERMANENT SEA ASSIGNMENT, AND, THEREFORE, AS A MATTER OF LAW CAUSED SUCH ASSIGNMENT TO TERMINATE. WE THINK THE CONVERSE IS TRUE, AND THAT WHERE THE ASSIGNMENT OF AN OFFICER TO DUTY BY THE NAVY DEPARTMENT EXPRESSLY IMPOSED UPON HIM THE CONTINUED DISCHARGE OF HIS SEA DUTIES AND QUALIFIED THE SHORE DUTY AS MERELY TEMPORARY AND ANCILLARY TO THE REGULAR SEA DUTY, THAT THE PRESUMPTION IS THAT THE SHORE DUTY WAS TEMPORARY AND DID NOT OPERATE TO INTERFERE WITH OR DISCHARGE THE OFFICER FROM THE RESPONSIBILITIES OF HIS SEA DUTY TO WHICH HE WAS REGULARLY ASSIGNED.

IN A DECISION OF THE FORMER COMPTROLLER OF THE TREASURY, DATED MARCH 9, 1915, 21 COMP. DEC. 604, 609, IT WAS SAID, PAGES 607, 608: IN THE ENGARD CASE IT WAS HELD THAT WHERE A NAVAL OFFICER, WHILE IN A SEA DUTY STATUS, WAS ORDERED TO PROCEED TO VARIOUS POINTS IN THE MIDDLE WEST TO INSPECT BOILER TUBES FOR A WAR VESSEL, THE DUTY BEING DESCRIBED AS TEMPORARY AND AS "IN ADDITION TO YOUR PRESENT DUTIES," SUCH OFFICER CONTINUED IN A SEA- DUTY STATUS FOR THE COMPARATIVELY BRIEF PERIODS, TWO IN NUMBER, DURING WHICH HE WAS ENGAGED IN THE INSPECTION DUTY DIRECTED IN HIS ORDERS. THE DECISION OF THE COURT APPEARS TO HAVE TURNED LARGELY ON THE FACT THAT THE INSPECTION DUTY WAS DESCRIBED AS BEING, AND IN FACT WAS, TEMPORARY, AND IT WAS STATED IN THE DECISION THAT SUCH DUTY WAS ANCILLARY TO THE SEA DUTY ON WHICH THE OFFICER WAS REGULARLY ENGAGED, HE BEING A CHIEF ENGINEER. THERE IS ROOM FOR THE ASSUMPTION, HOWEVER, THAT HAD THE GOVERNMENT'S CONTENTION IN THE CASE BEEN BASED ON A FINDING OF FACT INSTEAD OF A LEGAL CONCLUSION THE HOLDING OF THE COURT MIGHT HAVE BEEN DIFFERENT.

IN A LATER CASE IN THE COURT OF CLAIMS, WHERE AN OFFICER ON SEA DUTY WAS ORDERED TO RECRUITING DUTY ON SHORE,"IN ADDITION TO YOUR PRESENT DUTIES," AND REMAINED ON SUCH DUTY A YEAR, THE COURT HELD THAT DURING THE PERIOD OF SUCH DUTY THE OFFICER WAS IN A SHORE-DUTY STATUS, AND DISTINGUISHED THE CASE FROM THE ENGARD CASE IN THAT THE RECRUITING DUTY WAS NOT DESCRIBED IN THE ORDERS AS TEMPORARY DUTY. ( DOYLE V. UNITED STATES, 46 C.1CLS. 181.)

IT IS A PRINCIPLE WELL ESTABLISHED BY DECISIONS OF THE SUPREME COURT THAT THE CHARACTER OF THE DUTY PERFORMED BY A NAVAL OFFICER IS A QUESTION OF FACT, AND NOT ONE TO BE DETERMINED SOLELY BY THE WORDING OF THE ORDERS DIRECTING THAT THE DUTY BE PERFORMED, AND APPLYING THIS PRINCIPLE TO THE PRESENT CASE, AS WAS DONE IN THE DOYLE CASE ABOVE CITED, IT IS APPARENT THAT THE ENGARD CASE IS NOT CONTROLLING THEREOF * * *.

SINCE THE QUESTION WHETHER THE ADDITIONAL DUTY ASHORE IN THE UNITED STATES IS DEPENDENT UPON FACTS, THE ANSWER TO SUBQUESTION (A) AS TO SEA DUTY MUST BE THAT WHERE SUCH FACTS ARE WITHIN THE ENGARD CASE ADDITIONAL PAY UNDER SECTION 18 OF THE ACT OF MARCH 7, 1942, WOULD CONTINUE DURING THE PERIOD OF SUCH TEMPORARY ADDITIONAL DUTY, BUT IF THE FACTS BE SUCH AS TO NEGATIVE SUCH DUTY AS BEING MERELY ANCILLARY TO A PARAMOUNT SEA DUTY CREDIT FOR THE INCREASE SHOULD BE CONTINUED UNTIL DATE OF DETACHMENT FROM SEA DUTY OF THE PERSON CONCERNED. WHERE AN OFFICER ON FOREIGN SERVICE IS ORDERED TO TEMPORARY ADDITIONAL DUTY IN THE UNITED STATES HE IS NOT ON DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WHILE PERFORMING "TEMPORARY ADDITIONAL DUTIES" IN THE UNITED STATES AND HE WOULD BE ENTITLED TO THE INCREASE IN PAY FOR FOREIGN SERVICE AFTER ARRIVAL IN THE UNITED STATES. CREDIT WOULD BE RESUMED IN THE CASE OF PRIOR SEA DUTY UPON RETURN TO THE SHIP FROM WHICH DETACHED AND IN THE CASE OF PRIOR DUTY BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES THE CREDIT WOULD BEGIN FROM DATE OF DEPARTURE THEREFROM, 21 COMP. DEC. 604, SUPRA, AND CASES THEREIN CITED; 27 COMP. DEC. 499.

THE ANSWER TO SUBQUESTION (B) IS CONTAINED IN THE STATUTE THAT "FOR ANY PERIOD OF SERVICE WHILE ON SEA DUTY, OR DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA," THE INCREASE SHALL BE PAID AND WHETHER THE DUTY IS OR IS NOT DENOMINATED "TEMPORARY" MAKES NO DIFFERENCE. THE INCREASE FOR SEA DUTY IS PAYABLE FROM DATE OF REPORTING ABOARD THE VESSEL TO WHICH ASSIGNED, AND FOR FOREIGN SERVICE FROM DATE OF DEPARTURE FROM THE UNITED STATES.

WITH REFERENCE TO SUBQUESTION (C) IT MAY BE AGAIN REPEATED THAT WHETHER A PERSON IS PERFORMING ,SERVICE WHILE ON SEA DUTY" WITHIN THE MEANING OF SECTION 18 IS PRIMARILY A QUESTION OF FACT AND IN THIS CONNECTION ATTENTION IS INVITED TO DECISION B-20921, DATED DECEMBER 1, 1941, 21 COMP. GEN. 499, TO THE SECRETARY OF THE NAVY AND TO THE NUMEROUS DECISIONS THEREIN CITED. SEE, ALSO, 19 COMP. GEN. 370, AND OTHER DECISIONS UNDER NOTES TO SECTION 1571 OF THE REVISED STATUTES, PAGES 878-883 OF LAWS RELATING TO THE NAVY, ANNOTATED. ACCORDINGLY, SUBQUESTION (C) MAY BE ANSWERED ONLY IN A GENERAL MANNER. IF WHEN A PERSON ON SEA DUTY IS ORDERED TO TEMPORARY ADDITIONAL DUTY IN CONNECTION WITH THE FITTING OUT, CONVERSION AND FITTING OUT OF A VESSEL AND THE CONDITIONS OF "SERVICE WHILE ON SEA DUTY" CONTINUE DURING THE PERIOD OF ADDITIONAL TEMPORARY DUTY, THE SEA DUTY STATUS IS NOT AFFECTED.