B-25412, MAY 2, 1942, 21 COMP. GEN. 972

B-25412, MAY 2, 1942, 21 COMP. GEN. 972

PAY - ADDITIONAL - STATUS OF AIRCRAFT AND AIRSHIP DUTY FOR "SEA DUTY" PAY PURPOSES SERVICE PERFORMED BY NAVY OFFICERS IN AIRCRAFT (HEAVIER-THAN-AIR) ORGANIZATIONS OPERATING FROM SHORE STATIONS IN THE CONTINENTAL UNITED STATES IS NOT SERVICE FOR WHICH AN INCREASE IN PAY AS FOR ,SEA DUTY" IS AUTHORIZED BY SECTION 18 OF THE ACT OF MARCH 7, 1942, EVEN THOUGH THE ORGANIZATIONS ARE "ASSIGNED TO FORCES AFLOAT.' THE ACT OF MAY 11, 1928, AUTHORIZING SERVICE PERFORMED BY NAVY OFFICERS ASSIGNED TO AIRSHIPS (DIRIGIBLES) TO BE CONSIDERED AS EQUIVALENT TO SEA DUTY MAY NOT BE EXTENDED BEYOND ITS SPECIFIC TERMS TO INCLUDE SERVICE OF NAVY ENLISTED MEN ASSIGNED TO SIMILAR DUTY, AND, THEREFORE, SERVICE PERFORMED BY SUCH ENLISTED MEN IS NOT SERVICE FOR WHICH AN INCREASE IN PAY AS FOR "SEA DUTY" IS AUTHORIZED BY SECTION 18 OF THE ACT OF MARCH 7, 1942.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, MAY 2, 1942:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 14, 1942, AS FOLLOWS:

SECTION 18 OF THE ACT APPROVED MARCH 7, 1942 ( PUBLIC LAW 490, 77TH CONGRESS), PROVIDES:

" SEC. 18. 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.'

INSTRUCTIONS ISSUED TO THE NAVAL SERVICE BY THE SECRETARY OF THE NAVY PROVIDE, IN PART, THAT PERSONNEL ARE NOT ENTITLED TO THE ADDITIONAL PAY AUTHORIZED BY SECTION 18, SUPRA, WHILE ATTACHED TO RECEIVING SHIPS IN THE UNITED STATES WHEN NOT QUARTERED AND MESSED ABOARD, BUT THAT SUCH PERSONNEL ARE ENTITLED TO SUCH ADDITIONAL PAY IN THE UNITED STATES WHEN ATTACHED TO ALL OTHER SHIPS OR SQUADRONS IN COMMISSION OR IN SERVICE EXCEPT AIRCRAFT SQUADRONS; AND FURTHER, THAT ARMED GUARD CREWS, COMMUNICATION GROUPS, AND CONVOY GROUPS ARE ENTITLED TO SUCH INCREASE IN PAY FOR PERIODS WHILE ACTUALLY PERFORMING SEA SERVICE ( ALNAV 51, MARCH 11, 1942, AS MODIFIED BY ALNAV 71, APRIL 7, 1942).

THE NAVY DEPARTMENT HAS UNDER CONSIDERATION CERTAIN QUESTIONS AS TO THE SEA DUTY STATUS FOR PAY PURPOSES OF NAVAL PERSONNEL UNDER VARYING CONDITIONS OF SERVICE, UPON WHICH YOUR DECISION IS DESIRED, AS INDICATED BELOW.

DUTY WITH FLEET AIRCRAFT, EVEN WHEN OPERATING FROM SHORE STATIONS IN CONTINENTAL UNITED STATES, IS REGARDED AS SEA DUTY FOR PURPOSES OF PROMOTION AND ROTATION OF DUTY. IT IS ALSO CONSIDERED THAT DUTY IN FLEET AIRCRAFT IS IN FACT SEA DUTY, BUT THE NAVY DEPARTMENT IS IN DOUBT AS TO WHETHER SUCH DUTY WOULD BE CONSIDERED AS SEA DUTY FOR PAY PURPOSES. YOUR DECISION ACCORDINGLY IS REQUESTED ON THE FOLLOWING QUESTION:

(A) WHETHER OR NOT DUTY WITH FLEET AIRCRAFT ASSIGNED TO FORCES AFLOAT BUT OPERATING FROM STATIONS IN CONTINENTAL UNITED STATES IS SEA DUTY FOR PAY PURPOSES WITHIN THE MEANING OF SECTION 18 OF PUBLIC LAW NO. 490, APPROVED MARCH 7, 1942?

IN CONNECTION WITH THIS QUESTION, PARTICULAR ATTENTION IS INVITED TO THE FOLLOWING PROVISO APPEARING IN THE ANNUAL NAVAL APPROPRIATION ACTS UNDER THE APPROPRIATION FOR "PAY, SUBSISTENCE, AND TRANSPORTATION OF NAVAL PERSONNEL" ( PUBLIC LAW 48, APPROVED MAY 6, 1941; PUBLIC LAW 441, APPROVED FEBRUARY 7, 1942):

"PROVIDED FURTHER, THAT NO PART OF THIS APPROPRIATION SHALL BE AVAILABLE FOR THE PAY OF ANY MIDSHIPMAN APPOINTED FROM ENLISTED MEN OF THE NAVY WHO HAS NOT SERVED ABOARD A VESSEL OF THE NAVY IN FULL COMMISSION OR PERFORMED EQUIVALENT SERVICE WITH FLEET AIRCRAFT FOR AT LEAST NINE MONTHS PRIOR TO ADMISSION TO THE NAVAL ACADEMY.'

IT WILL BE OBSERVED THAT THE ABOVE QUOTED STATUTORY PROVISION PLACES SERVICE IN FLEET AIRCRAFT IN AN EQUIVALENT STATUS TO SERVICE ABOARD A VESSEL OF THE NAVY IN FULL COMMISSION. THIS APPARENT LEGISLATIVE INTENT TO CONSIDER DUTY WITH FLEET AIRCRAFT AS SEA DUTY MIGHT REPRESENT SUFFICIENT AUTHORITY TO WARRANT PAYMENT OF THE ADDITIONAL AMOUNT FOR SEA DUTY TO PERSONNEL ON DUTY WITH FLEET AIRCRAFT.

U.S. CODE, TITLE 34, SECTION 224, 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.' ( R.S. SEC. 1571; MAY 11, 1928, CH. 523, 45 STAT. 498.)

UNDER THE TERMS OF THIS STATUTE THE SECRETARY OF THE NAVY HAS AUTHORITY TO DETERMINE WHETHER OR NOT THE SERVICE PERFORMED BY OFFICERS ASSIGNED TO AIRSHIPS IS EQUIVALENT TO SEA DUTY. THERE IS NO PROVISION FOR DETERMINING THE DUTY STATUS OF ENLISTED MEN ASSIGNED TO AIRSHIPS. YOUR DECISION ACCORDINGLY IS REQUESTED ON THE FURTHER QUESTION:

(B) WHETHER OR NOT DUTY IN AIRSHIPS, WHERE THE SECRETARY OF THE NAVY HAS DETERMINED AND CERTIFIED, IN ACCORDANCE WITH THE PROVISIONS OF U.S. CODE, TITLE 34, SECTION 224, THAT THE SERVICE OF THE OFFICERS ASSIGNED TO SUCH AIRSHIPS IS EQUIVALENT TO SEA DUTY, SHALL BE CONSIDERED AS SEA DUTY FOR PAY PURPOSES FOR THE ENLISTED PERSONNEL ASSIGNED THERETO, WITHIN THE MEANING OF SECTION 18 OF PUBLIC LAW NO. 490, APPROVED MARCH 7, 1942?

IT IS REQUESTED THAT YOUR DECISION ON THE QUESTIONS HEREIN SET FORTH BE RENDERED AS SOON AS PRACTICABLE IN ORDER TO CLARIFY THE STATUS OF PERSONNEL ATTACHED TO AIRSHIPS AND FLEET AIRCRAFT.

YOUR QUESTIONS NECESSARILY IMPLY THAT SECTION 18 OF THE ACT OF MARCH 7, 1942, 56 STAT. 148, MAY HAVE CREATED A DISPARITY AS TO THE PAY THEREIN PROVIDED BETWEEN OFFICERS AND MEN OF THE NAVY AND OFFICERS AND MEN OF THE ARMY ON IDENTICAL DUTY IN THE UNITED STATES. OFFICERS OF THE ARMY PARTICIPATING IN REGULAR AND FREQUENT AERIAL FLIGHTS ASSIGNED TO AND DOING DUTY WITH AN ORGANIZATION STATIONED IN THE UNITED STATES WOULD NOT BE ENTITLED TO 10 PERCENT INCREASE OF THEIR PAY EVEN THOUGH THEIR DUTY REQUIRED OPERATION OF AIRCRAFT OVER THE HIGH SEAS ADJACENT TO THEIR STATIONS. BUT BY YOUR QUESTION THE SUGGESTION IS IMPLIED THAT OFFICERS OF THE NAVY SIMILARLY SITUATED WHOSE ORGANIZATION WHILE STATIONED IN THE UNITED STATES IS "ASSIGNED TO FORCES AFLOAT" MAY BE ENTITLED TO THE ADDITIONAL PAYMENT AS FOR "SEA DUTY.' SO, ALSO, AS TO YOUR QUESTION (B). ENLISTED MEN OF THE ARMY ASSIGNED TO DUTY WITH OR ON AIRSHIPS AND STATIONED IN THE UNITED STATES WOULD NOT BE ENTITLED TO AN INCREASE IN PAY UNDER SECTION 18 OF THE ACT OF MARCH 7, 1942, BUT BECAUSE OF THE AMENDMENT OF SECTION 1571, REVISED STATUTES, BY THE ACT OF MAY 11, 1928 (SECTION 224, TITLE 34, U.S. CODE), THE IMPLICATION OF THE QUESTION IS THAT ENLISTED MEN OF THE NAVY PERFORMING SIMILAR DUTY IN THE UNITED STATES WITH AIRSHIPS OF THE NAVY WOULD BE ENTITLED TO THE ADDITIONAL PAY.

THE APPLICABILITY OF THE PROVISIONS CONTAINED IN ANNUAL APPROPRIATION ACTS WITH REFERENCE TO THE QUALIFICATIONS FOR PAYMENT TO MIDSHIPMEN APPOINTED FROM ENLISTED MEN OF THE NAVY IS NOT APPARENT. THESE PROVISIONS MERELY CONSIST OF ALTERNATIVE REQUIREMENTS OF SERVICE BY ENLISTED MEN OF THE NAVY AS CONDITIONS FOR PAYMENT AS MIDSHIPMEN AT THE UNITED STATES NAVAL ACADEMY.

IT IS ASSUMED THAT QUESTION (A) REFERS TO THE OPERATION OF HEAVIER THAN- AIR CRAFT ASSIGNED TO FORCES AFLOAT AND THAT QUESTION (B) HAS REFERENCE TO ENLISTED MEN ABOARD DIRIGIBLES.

THE EFFECT OF THE AMENDMENT TO SECTION 1571 OF THE REVISED STATUTES BY THE ACT OF MAY 11, 1928, 45 STAT. 498, UPON THE STATUS OF A NAVAL OFFICER WHILE ON DUTY ABOARD THE U.S.S. LOS ANGELES WAS CONSIDERED IN DECISION A- 24909, DATED JANUARY 26, 1929, AND IT WAS HELD FOR REASONS MORE FULLY STATED THEREIN THAT SUCH SERVICE, WHEN DETERMINED IN THE JUDGMENT OF THE SECRETARY OF THE NAVY TO BE EQUIVALENT TO SEA DUTY AND SO CERTIFIED BY HIM, IS TO BE TREATED AS SEA DUTY FOR ALL PURPOSES INCLUDING THE PAYMENT OF SEA PAY THEN AUTHORIZED BY STATUTE. HOWEVER, THE LANGUAGE AND THE STATED REASONS FOR ENACTMENT OF THE ACT OF MAY 11, 1928, HAVE ONLY THE LIMITED FIELD OF OPERATION WHICH WAS REASONABLY INTENDED AND CONTEMPLATED THEREBY AND MAY NOT BE EXPANDED BEYOND THEIR ORDINARY IMPORT. THE ACT OF MAY 11, 1928, PROVIDES "THAT WHEN OFFICERS ARE ASSIGNED TO AIRSHIPS * * *.' IT IS SPECIFIC BOTH AS TO THE PERSONNEL WITHIN THE ACT AND TO THE TYPE OF AIRCRAFT.

IN THE LETTER OF THE SECRETARY OF THE NAVY, DATED NOVEMBER 29, 1927, TRANSMITTING THE PROPOSED BILL WHICH WAS ENACTED WITHOUT CHANGE AS THE ACT OF MAY 11, 1928, IT WAS STATED, IN PART:

THE REASON WHY THE NAVY DEPARTMENT DESIRES THIS LEGISLATION IS TO PERMIT THE NAVY DEPARTMENT TO ASSIGN OFFICERS TO DUTY ON AIRSHIPS FOR A CONSIDERABLE LENGTH OF TIME WITHOUT PREJUDICING THE CHANCES OF THE OFFICERS SO ASSIGNED TO SELECTION AND PROMOTION. THE LAW GOVERNING THE AMOUNT OF SEA SERVICE IN GRADE FOR PROMOTION PURPOSES IS AS FOLLOWS:

"* * * NO CAPTAIN, COMMANDER, OR LIEUTENANT COMMANDER SHALL BE PROMOTED UNLESS HE HAS HAD NOT LESS THAN TWO YEARS' ACTUAL SEA SERVICE ON SEAGOING SHIPS IN THE GRADE IN WHICH SERVING. * * * ( AUG. 29,1916, CH. 417, 39 STAT. 579; U.S. CODE, TITLE 34, SEC. 311.)"

THE HANDLING OF A RIGID AIRSHIP IS VERY DEFINITELY A SPECIALTY, AS MUCH SO AS THAT OF THE HANDLING OF A SHIP AT SEA. IT REQUIRES LONG AND SPECIALIZED EXPERIENCE, AND TO SECURE A SUFFICIENT, PROPERLY QUALIFIED PERSONNEL FOR THE SERVICE AT ALL TIMES IT IS DESIRABLE THAT OFFICERS WISHING TO ENTER THAT LINE OF DUTY SHOULD BE ALLOWED TO DEVOTE THEMSELVES TO SERVICE ON BOARD RIGID AIRSHIPS, ALTERNATING WITH SHORE DUTY PRIMARILY CONCERNED WITH AIRSHIPS, FOR A NUMBER OF YEARS, AND INDEED THROUGHOUT THEIR ENTIRE SERVICE CAREERS. * * *

IN THE REPORT OF THE COMMITTEE ON NAVAL AFFAIRS ON THAT BILL, SENATE REPORT NO. 888, SEVENTIETH CONGRESS, FIRST SESSION, IT WAS STATED, AFTER QUOTING IN FULL THE LETTER OF THE SECRETARY OF THE NAVY:

THE SITUATION WITH REGARD TO HEAVIER-THAN-AIR CRAFT DOES NOT REQUIRE LEGISLATION AT THE PRESENT TIME. OFFICERS ON DUTY WITH THIS TYPE GET OPPORTUNITY TO DO SEA DUTY WHEN THEY ARE SENT ABOARD SHIPS TO OPERATE PLANES FROM THOSE SHIPS, EITHER BATTLESHIPS, CRUISERS, OR AIRPLANE CARRIERS.

DUTY PERFORMED BY OFFICERS IN AIRCRAFT ORGANIZATIONS OPERATING FROM SHORE STATIONS IN CONTINENTAL UNITED STATES, EVEN THOUGH THE ORGANIZATION IS "ASSIGNED TO FORCES AFLOAT," IS NOT SERVICE WHILE ON SEA DUTY WITHIN THE MEANING OF SECTION 18 OF THE ACT OF MARCH 7, 1942.

THE ACT OF MAY 11, 1928, BEING AN EXCEPTION TO THE LONG-STANDING RULE WITH REFERENCE TO THE SERVICE TO BE REGARDED AS SEA SERVICE, ITS PROVISIONS MAY NOT BE EXTENDED BEYOND SPECIFIC TERMS THEREOF. AS STATED ABOVE, IT DOES NOT COMPREHEND ENLISTED MEN. THE ANSWERS TO BOTH QUESTIONS MUST BE IN THE NEGATIVE.